Gross Implications
by John Gause, Esq. November 5, 2009, Maine LAWYERS REVIEW
Imagine if two people shoot and kill someone but neither were guilty of murder or manslaughter because the victim would have died from either bullet. Or if three people push a boulder off a cliff onto someone below but none is legally responsible because any combination of two could have pushed it off without the third. These are the implications of the liability standard articulated in a recent Supreme Court decision addressing the federal Age Discrimination in Employment Act (“ADEA”).
In Gross v. FBL Financial Services, Inc., the United States Supreme Court held that employer can only be said to have taken an adverse action against employee “because of” his age if age was the “but for” cause of the action, meaning employee would not have suffered the action if age were not a factor. The burden of proving “but for” causation remains on employee at all times, even if employer admits that age was a motivating factor in its decision.
The “but for” standard is not new in Maine–the Law Court held thirty years ago that it applies to the Maine Human Rights Act (“MHRA”). What is new is the potential elimination of the “mixed-motive” analysis, under which the burden of persuasion shifts to employer to prove that it would have made the same decision for nondiscriminatory reasons if there is “direct evidence” that protected-class status was a motivating factor in the decision. It is unclear whether the Law Court will apply Gross to the MHRA with respect to the mixed-motive analysis. In any event, Gross highlights the problems with the “but for” standard that led Congress, in 1991, to amend Title VII of the Civil Rights Act of 1964 (“Title VII”) to make it unlawful for protected class to be “a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m).
Three types of employer decisions that arguably should be covered by our nondiscrimination laws slip though the cracks of the “but for” liability standard. First and simplest are those in which employer discriminates because of protected class as well as other reasons but would have made the same decision without considering employee’s protected class. This happens, for example, when employer fires employee for being 65 years old and being a bad worker but would have fired him for being a bad worker anyway. Protected class was in the mix, but it did not tip the scale.
The second type is when employer takes an adverse employment action because of plaintiff’s protected class along with other reasons and either alone would have been sufficient. For example, employer fires employee for being 65 and a bad worker and would have fired him if he were young and a bad worker or 65 and a good worker. In other words, employer would have fired employee for being too old even if his work performance were fine, and it would have fired him for being a bad worker even if he were young. There is no “but for” causation here because employee would have been fired even if you take age out of the picture.
The third type of case arises when the adverse decision is based on multiple factors acting together, and a lesser combination of any of the factors would have led to the same decision. For example, employer fires employee because he is 65, a bad worker, and shows up late for work, but any two of the three reasons would have led to the termination. Employee would have been fired if he were a bad worker and late but young, if he were 65 and a bad worker but punctual, or if he were 65 and late but a good worker. None of the factors is the “but for” cause of the termination because employee still would have been fired without that factor.
In all three scenarios employers are discriminating based on protected-class status, but there would be no violation of an antidiscrimination law that follows Gross. This is a problem because in the first example the unlawful motive may have been a relatively minor player but it still motivated the decision and in the last two even the ringleaders go free. In all three employers are discriminating with impunity. If we say that only “but for” discrimination is illegal we are saying that sometimes it is ok to discriminate.
That is not to say that “but for” causation has no place in our employment discrimination laws. The remedy for unlawful discrimination should be commensurate with the damage done by the discrimination. If the same harm would have occurred without the unlawful discrimination the employer should not be on the hook for the harm. But that should be sorted out at the damages–not the liability–phase. A culpability finding will not necessarily mean that employee is entitled to receive anything or that employer has to do anything. What, if any, remedy is warranted will depend on the circumstances. That is the right time to incorporate the “but for” standard.
Take an employer that has no antidiscrimination policies and condones sexism in its workplace. If one of its supervisors fires employee because she is a woman as well as for legitimate reasons, and if the legitimate reasons alone would have led to the termination, employee should not be paid lost wages, receive compensatory damages, or get her job back. Those would go beyond her injury.
But that should not prevent a finding of discrimination because supervisor was motivated, in part, by employee’s sex. And the remedy should address the corporate culture that encouraged the supervisor to consider employee’s sex in making the decision. Depending on the circumstances, it may include an order that employer receive nondiscrimination training and implement policies and procedures designed to prevent discrimination.
This is the way Title VII works. Prior to 1991, Title VII was worded the same as the ADEA and the MHRA are worded today. In 1989, in Price Waterhouse, the Supreme Court held that Title VII liability required “but for” causation. Congress reacted by amending Title VII to include the “a motivating factor” standard in addition to the “but for” standard. Now under Title VII the “but for” causation only controls the remedy.
The Title VII amendment strikes the proper balance. The ADEA and the MHRA (as well as the Americans with Disabilities Act of 1990) do not have the same language, and they, too, should be amended. The time to think about “but for” causation is at the damages phase only, not when determining liability.
