Not long ago, a friend asked me why I traveled from Pittsburgh to Las Vegas to see Motley Crue perform at The Joint at the Hard Rock Cafe. My reply was simple. Because, I told him, Motley Crue writes great rock-n-roll songs. Because the band members are good musicians. Because the Crue always has a great live show. It occurred to me that if Motley Crue did not write good songs, or if they were not good musicians, or if they did not have great live shows, I would not have made the trip. As I thought this through, I began thinking about but-for causation in employment cases, a particularly hot topic in employment law since the Supreme Court handed down University of Texas Southwestern Medical Center v. Nassar last June.
Nassar was a Title VII retaliation case that followed another Supreme Court case, Gross v. FBL Financial Services, Inc., in which the Court held that the term “because of age” under the federal Age Discrimination in Employment Act meant that a plaintiff had to prove but-for causation, i.e., but-for her age, the plaintiff would not have been fired. In Gross, the Court rejected the “motivating factor” standard that many courts had previously applied to claims under the anti-discrimination laws. The question in Nassar was whether Title VII’s anti-retaliation provision, which also included “because of” language, also meant “but-for” causation, even though another provision of Title VII which prohibited discrimination “because of” protected characteristics such as race and gender was specifically defined to mean motivating cause. The Court answered in the affirmative, reasoning that Congress’s failure to specially define “because of” in the anti-retaliation as motivating cause signaled its intent to limiting the motivating cause standard to the provision prohibiting discrimination.
The debate in legal circles has been whether but-for causation is really that hard a standard to meet. My view is that it is not, and this is where I come back to Motley Crue.
I had three reasons why I went to the Crue show: (1) because of the good songs, (2) because of band members’ musicianship, and (3) because of the good live performance. If any one of these factors was not true, I would not have made the trip to Las Vegas. Each of my reasons was thus a “but-for” cause of my decision to go to the show.
Now consider an employment case with two causes of an adverse employment action, one legal and one illegal. The employer will deny the illegal cause, focus solely on the lawful cause, and then argue that even if an unlawful motive played a part in its decision-making process, the plaintiff cannot show that motive was a but-for cause of the adverse employment action. The employer will then circle back to its allegedly lawful reason and point out how serious it was, and how the earth nearly stopped rotating because of it, and so on.
Assuming the employer did not lie outright about its lawful reason (which many employers do), the employee’s strategy is two fold. Step 1 is to look for comparators who have engaged in similar conduct and not been fired. This evidence will prove that but-for employer’s lawful reason, employees do not get fired. The employee next argues that the unlawful reason is what made the difference, it was the straw that broke the camel’s back. It may not have been the dominant reason, it may even have been a small reason, but without it, the employer would not have reached the adverse employment decision. That is but-for causation.
All this being said, plaintiff’s attorneys should not cede the causation battle. Some courts are finding good reasons not to import Nassar’s but-for standard into cases where defendants have sought to have it applied as the causation rule. In Siring v. Oregon State Board of Education, for example, the ADA plaintiff asserted she was fired from her position as a tenure-track assistant professor based on the perception that she was an alcoholic. The university argued that the plaintiff’s claim was subject to Nassar’s but-for cause standard, but the U.S. District Court for the District of Oregon disagreed. In addressing the appropriate causation test under the language of the ADA Amendments Act, the court found that ADAAA discrimination claims are less like Title VII retaliation claims and more akin to Title VII discrimination claims. The latter type of claim, per Nassar, is evaluated under the “motivating-factor” standard. As a result, the Siring court ruled, the professor could prevail on her disability bias claim by showing that her perceived disability was a “motivating factor,” among others, in her termination. The professor later prevailed at trial.