Richard Schall, Esq.
SCHALL & BARASCH, LLC
October 29. 2020
In addition to its enormous significance in making it illegal in every State to discriminate against gays and transgender employees, the United States Supreme Court’s recent decision in Bostock v. Clayton County, authored by Justice Gorsuch, provides very helpful analysis on two issues that are key to our to prevail in employment cases:
(1) the meaning of “but-for cause;” and
(2) the meaning of “intent” in proving intentional discrimination.
- BUT-FOR CAUSE:
Until the Bostock decision, many of us viewed “but-for” cause as a standard far more difficult to overcome than the seemingly more preferable “motivating factor” standard. In light of Bostock, I think that should no longer be the case. In fact, for reasons I’ll set forth below, I’m liking the “but-for” standard as the preferable one, at least in most cases.
To begin with, here are several of the key pronouncements excerpted from the Gorsuch opinion on the “but-for” standard:
- “This can be a sweeping standard. Often, events have multiple but-for causes. (emphasis added)”
Bostock v. Clayton Cty., Nos. 17-1618, 17-1623, 18-107, 2020 U.S. LEXIS 3252, at *15 (June 15, 2020)
- “When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff ’s sex was one but-for cause of that decision, that is enough to trigger the law. (emphasis added).”Bostock v. Clayton Cty., Nos. 17-1618, 17-1623, 18-107, 2020 U.S. LEXIS 3252, at *15 (June 15, 2020)
- “No doubt, Congress could have taken a more parsimonious approach. As it has in other statutes, it could have added “solely” to indicate that actions taken “because of” the confluence of multiple factors do not violate the law. Cf. 11 U. S. C. §525; 16 U. S. C. §511. Or it could have written “primarily because of” to indicate that the prohibited factor had to be the main cause of the defendant’s challenged employment decision. Cf. 22 U. S. C. §2688. But none of this is the law we have.”Bostock v. Clayton Cty., Nos. 17-1618, 17-1623, 18-107, 2020 U.S. LEXIS 3252, at *15 (June 15, 2020)
- “But this submission [as argued by the Defendants in Bostock] rests on a mistaken understanding of what kind of cause the law is looking for in a Title VII case. In conversation, a speaker is likely to focus on what seems most relevant or informative to the listener. So an employee who has just been fired is likely to identify the primary or most direct cause rather than list literally every but-for cause. To do otherwise would be tiring at best. But these conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex was a but-for cause. . . You can call the statute’s but-for causation test what you will—expansive, legalistic, the dissents even dismiss it as wooden or literal. But it is the law.” (emphasis added)Bostock v. Clayton Cty., Nos. 17-1618, 17-1623, 18-107, 2020 U.S. LEXIS 3252, at *31-32 (June 15, 2020)
From the above excerpts, it is now unquestionable that, in dealing with “but-for” cause, we are dealing with a “sweeping,” “expansive” standard under which a plaintiff can establish liability for discrimination even though discrimination was not even the “primary” or “main cause” cause (let alone the “sole cause”) of the employer’s adverse action against the employee.
Applying this to our employment discrimination cases, in most, if not all, of these cases, there are usually multiple reasons why the employer has decided to fire our client, and, in fact, the main reason may well have nothing to do with the employee’s race, age, national origin, sex, or sexual orientation, etc. Despite some other factor being perhaps the “main” reason for the employer’s action , we can still prevail in the case, and this is a point that needs to be driven home to a court both in our defending against a motion for summary judgment and in the instructions given to a jury.
It remains nonetheless true, in order to defeat a summary judgment motion, we will still need to point to evidence from which a jury could conclude that the employee’s race, age, sex, etc. did “make a difference” in the employer’s decision, but the point here is that there could have been many things that “made the difference,” and we need to be able to show that the employee’s race, age, sex, etc., was only one of them.
I’m not sure all this changes the way we approach discovery in our cases. We still need to be able to attack at least one or more of the employer’s articulated reasons as pretextual; or point to evidence that the employer did not enforce its rules equally; or that there were comments made that suggest discrimination; or any other type of evidence that might point to discrimination having made a difference in the employer’s decision. While this is still our burden in discovery, I think, in light of Gorsuch’s decision in Bostock, our job, at least in defeating summary judgment motions, has been made a little bit easier. We shall see.
How To Explain “But-For Cause” To A Judge Or Jury:
Here is what Bostock has to say:
“[A] but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. (emphasis added).This can be a sweeping standard. Often, events have multiple but-for causes. So, for example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision. Cf. Burrage v. United States, 571 U. S. 204, 211-212, 134 S. Ct. 881, 187 L. Ed. 2d 715 (2014). When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff ’s sex was one but-for cause of that decision, that is enough to trigger the law. See ibid.; Nassar, 570 U. S., at 350, 133 S. Ct. 2517, 186 L. Ed. 2d 503.”
Bostock v. Clayton Cty., 140 S. Ct. 1731, 1739, 207 L.Ed.2d 218, 232 (2020)
The New Jersey Model Civil Jury Charge is Consistent with Bostock:
Looking at our Model Civil Jury Charge, I believe it to be completely consistent with Bostock. It makes clear that an employer may have “more than one reason or motivation for its actions,” and that plaintiff is “not required to prove her [sex, age, etc.] was the only reason for defendant’s actions.” The relevant excerpt is below:
You may find that the defendant had more than one reason or motivation for its actions. For example, you may find that the defendant was motivated both by the plaintiff’s [insert the protected category] and by other, nondiscriminatory factors, such as the plaintiffs’ job performance. To prevail, the plaintiff is not required to prove that his/her [insert the protected category] was the only reason or motivation for defendant’s actions. Rather, the plaintiff must only prove that his/her [insert the protected category] played a role in the decision and that it made an actual difference in the defendant’s decision. If you find that the plaintiff’s [insert the protected category] did make an actual difference in the defendant’s decision, then you must enter judgment for the plaintiff. If, however, you find that the defendant would have made the same decision regardless of the plaintiff’s [insert the protected category], then you must enter judgment for the defendant.
- WHAT DOES THE “INTENT” IN “INTENTIONAL DISCRIMINATION” MEAN?
The takeaway on this issue from Justice Gorsuch’s opinion is that, in order to prove intentional discrimination (which is what the law requires us to prove in a disparate treatment case), we do NOT need to show that the employer harbored any particular animus toward minority employees in general, or against the individual employee in particular, on account of race, sex, age, etc. Thus, there is no need to try to prove that there was some “bad actor” responsible for the adverse action; or that the decision-maker was a “racist” or “sexist” or “homophobe.”
Moreover, as the Opinion makes clear, for “intentional discrimination” to be actionable, the specific “intent” behind the employer’s decision need not have been to discriminate. Rather, as long as the consequence or effect to the employer’s action was discriminatory, that alone is sufficient to show that the discrimination was intentional.
Here’s how Justice Gorsuch made the point:
“Reframing the additional causes in today’s cases as additional intentions can do no more to insulate the employers from liability. Intentionally burning down a neighbor’s house is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view. No less, intentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees.”
Bostock v. Clayton Cty., Nos. 17-1618, 17-1623, 18-107, 2020 U.S. LEXIS 3252, at *23-24 (June 15, 2020)
Later on in his Opinion, Justice Gorsuch added this:
“What, then, do the employers mean when they insist intentional discrimination based on homosexuality or transgender status isn’t intentional discrimination based on sex? Maybe the employers mean they don’t intend to harm one sex or the other as a class. But as should be clear by now, the statute focuses on discrimination against individuals, not groups. Alternatively, the employers may mean that they don’t perceive themselves as motivated by a desire to discriminate based on sex. But nothing in Title VII turns on the employer’s labels or any further intentions (or motivations) for its conduct beyond sex discrimination.”
Bostock v. Clayton Cty., Nos. 17-1618, 17-1623, 18-107, 2020 U.S. LEXIS 3252, at *33 (June 15, 2020)
In Bostock, Gorsuch was left with no choice but to make the point that “intentional discrimination” under Title VII does not require a “motive” to harm someone because of his or her sexual orientation or gender since it was clear that the defendants in the three cases before the Court bore no particular animus toward “men” or “women.” It was homosexual or transgender employees they did not want in their workplaces.
So, what does this say about “intention” in employment discrimination cases: There is no requirement that there be any particular animus toward blacks or women or “intent” to discriminate against them. Instead, if the conduct is discriminatory, that is sufficient. That is, look at the effect of the action; not whether it was intended to have that effect. I believe the key distinction here is between what is known as “general intent” versus what is referred to as “specific intent.” I think the only conclusion that can be drawn from Bostock is that all that is required in discrimination cases is “general intent.” So, if an employer intended to take an action that we can prove discriminated against our client, we have proven the type of intent required by Bostock, even if the employer did not “intend” to discriminate in the narrower sense of the term. Here, the employers in Bostock didn’t necessarily intend to discriminate against women, or men; but as a result of their intent to exclude gays or transgender employees, the effect was to discriminate against women (or men) or account of their sex.
This, finally, leads back to the discussion of the choice between using “but for” cause or “motivating factor” as the test for showing discrimination. One downside I see to “motivating factor” is that it can be read to imply that we need to show some “ill motive” on behalf of the defendant. “But for” cause avoids any such implication. In this regard, it is interesting that, in his dissent, Justice Alito cites “motivating factor” as the appropriate test:
“The standard of causation in these cases is whether sex is necessarily a ‘motivating factor’ when an employer discriminates on the basis of sexual orientation or gender identity. 42 U. S. C. §2000e-2(m). But the essential question—whether discrimination because of sexual orientation or gender identity constitutes sex discrimination—would be the same no matter what causation standard applied. The Court’s extensive discussion of causation standards is so much smoke.”
Bostock v. Clayton Cty., Nos. 17-1618, 17-1623, 18-107, 2020 U.S. LEXIS 3252, at *109-10 (June 15, 2020) (Alito, dissenting)
I do think the Gorsuch’s discussion of “intent” in discrimination cases raises an interesting issue as to the role of “unconscious bias” in our cases and the extent to which we will need to rely upon that going forward.
- OTHER SIGNIFICANT TAKEAWAYS FROM BOSTOCK
- An Employer Need Not Discriminate Against Every Member Of A Protected Class In Order To Be Liable For Discrimination Against Any One Particular Individual.
Employers often try to argue that they did not discriminate against X because the evidence shows that they have treated others in X’s protected class well, or even better than those not in that protected class. Bostock makes clear this argument does not fly:
“The consequences of the law’s focus on individuals rather than groups are anything but academic. Suppose an employer fires a woman for refusing his sexual advances. It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex.”
- We Need Not Rebut Every One of the Defendant’s Proffered Reasons in Order to Defeat Summary Judgment or Prevail at Trial.
Since Bostock recognizes that there can be multiple “but for” causes of a termination and as long as one of the but for causes was the plaintiff’s membership in a protected class, a plaintiff should not be required to rebut each and every one of the reasons offered by a defendant for terminating the plaintiff.
- The “Cat’s Paw Theory and Bostock.
The fact that there can be multiple “but-for” causes was pointed out nearly 10 years ago by the United States Supreme Court in a “cat’s paw” case, Staub v. Proctor Hosp., 562 U.S. 411, 419-20 (2011), written by the Justice Scalia:
“And it is axiomatic under tort law that the exercise of judgment by the decisionmaker does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm. Proximate cause requires only “some direct relation between the injury asserted and the injurious conduct alleged,” and excludes only those “link[s] that [are] too remote, purely contingent, or indirect.” Hemi Group, LLC v. City of New York, 559 U.S. 1, 9, 130 S. Ct. 983, 175 L. Ed. 2d 943, 951 (2010) (internal quotation marks and brackets omitted). We do not think that the ultimate decisionmaker’s exercise of judgment automatically renders the link to the supervisor’s bias “remote” or “purely contingent.” The decisionmaker’s exercise of judgment is also a proximate cause of the employment decision, but it is common for injuries to have multiple proximate causes.” (emphasis added).
These cat’s paw cases are perfect examples of why and how there can be multiple “but-for” causes of discrimination, and we should keep them in mind in a variety of contexts, not just a cat’s paw case.