Sole Motives and University of Texas Southwestern Medical Center v. Nassar

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5 Responses

  1. Brian Clarke says:

    The underlying causation issue is, in my view anyway, the far more problematic issue for the future of anti-discrimination law. In Nassar itself, both the employer’s counsel and the trial judge referred to the “but for” standard from Gross as a “sole cause” standard. The language of Gross, of course, is primarily to blame for this problem, as it refers to “THE but for cause” and “THE reason” for the discrimination (rather than “a but for cause” or “a reason” for the discrimination).

    I suggest a possible face-saving way for the Court to fix this issue in a recent essay in the California Law Review: http://www.californialawreview.org/articles/the-gross-confusion-deep-in-the-heart-of-university-of-texas-southwest-medical-center-v-nassar.

    Hopefully the Court will sort this issue out in Nassar.

  2. Katie Eyer says:

    Brian, I completely agree. This is by far the biggest risk presented by Gross in my opinion. Thanks for posing a link to your piece — hopefully the Court will embrace a similar approach.

  3. Sandra Sperino says:

    Thank you for posting on this important case!

  4. Those who are following Nassar might also be interested in the amicus brief that I filed in the case, arguing that Gross was wrongly decided — in particular, that the use of the word “because” doesn’t require but-for causation. The evidence in support of that argument includes quotes from every member of the Gross majority using “because” in a way that was pretty clearly not intended to entail but-for causation.

  5. Brian Clarke says:

    And . . . Justice Kennedy, writing for the majority in Nassar, confuses matters even more. He repeatedly refers to “the but for cause” and, in the final paragraph states that the plaintiff must establish that retaliatory animus was “a but for cause.” He repeated the particularly troubling passage from Gross verbatim (including the unhelpful citations), yet also cites to the Restatement (Third) of Torts which contains a far more nuanced approach to factual causation. No mention of the “sole causation” problem — despite the fact that he addressed that directly in his Price Waterhouse dissent.

    Oh, well. I see another essay in my future.