Sole Motives and University of Texas Southwestern Medical Center v. Nassar, Part II
The Supreme Court’s decision in Nassar is now out. As discussed in my earlier post, the central issue in Nassar is whether or not retaliation plaintiffs under Title VII get the benefit of the “mixed motives” burden-shifting regime (recognized by the Supreme Court in Price Waterhouse v. Hopkins, and codified by Congress in the Civil Rights Act of 1991), under which a showing that a statutorily-proscribed factor (sex, race, retaliation, etc.) motivated the Defendant in part is enough to shift the burden to the Defendant to show they would have taken the same act anyways (or in the CRA 1991 version of the test, to establish liability and entitlement to limited remedies).
In a 5-4 holding, the Court today in Nassar concludes that Title VII retaliation Plaintiffs do not get the burden of the mixed motives test. This holding is not terribly surprising in light of the Court’s 2009 decision in Gross v. FBL Financial, although there were some strong arguments as to why retaliation claims should be treated differently (most notably, the Court has traditionally treated retaliation claims as part and parcel of proscriptions on substantive discrimination, strongly suggesting that the adoption of a mixed motives framework vis-à-vis the latter must be treated as also extending such a framework to the former). The Court’s extension of Gross to Title VII retaliation claims strongly suggests that a majority of the Court is committed to extending Gross to all statutory claims lacking explicit language authorizing mixed-motives burden shifting, and is unlikely to retreat from or limit the application of Gross (a case many observers believed was wrongly decided).
On the other important lurking issue underlying Nassar—whether the rejection of a mixed motives burden-shifting regime means a requirement of “sole” motivation or causation—Nassar does little to dispel the confusion generated by Gross. I discuss this issue more fully in my prior post. To reiterate briefly here: in the aftermath of Gross, anti-discrimination defendants began to argue that claims not subject to a mixed-motives burden shifting regime should be required to show that the illegal consideration (e.g., age) was “the but for” or sole cause of the employer’s action. Many (but not all) courts rejected this argument as inconsistent with the long-standing principle in anti-discrimination law that a simple showing of but-for causation is sufficient to establish liability, even where a mixed-motives burden-shifting regime does not apply. (That is to say, a Plaintiff must—absent resort to the “mixed motives” burden-shifting regime—show that the illegal motivation was “a but-for cause,” but need not show sole or exclusive cause). As others have observed, the sole cause approach is also inconsistent in many instances with demonstrable Congressional intent.
Both sides of this dispute will no doubt find fodder for their arguments in the Court’s decision in Nassar today. The Court repeats some of its most confusing language from Gross, referring to the issue as whether a Plaintiff must establish that retaliation was “the but-for cause” of the employer’s actions—but then concludes by restating its core holding as a requirement that a Plaintiff must show that retaliation was “a but-for cause” of the alleged adverse action. Nassar Slip Op at 23 (emphasis added). And the dissent (Justice Ginsburg, joined by Justices Breyer, Sotomayor and Kagan) only further confuses the issue by seemingly suggesting (although not directly stating) that the Court’s majority is demanding a “sole” causation standard (something the majority does not purport to do). Nassar Dissent at 24.
In any event, I predict that we can expect to see much more of the “sole cause” argument from anti-discrimination defendants in the lower courts in the upcoming years. Absent clear direction from the Supreme Court, this is an irresistible argument for discrimination defendants, for fairly obvious reasons (virtually no plaintiff is going to be able to demonstrate sole cause). It remains to be seen how broadly receptive the lower courts will be to the argument (to date, Defendant successes have largely been confined to district court decisions, but most circuits have not yet addressed the issue, see, e.g., here and here for helpful compilations of relevant holdings).