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 the other bullet anyway. Or if three people push a rock off a cliff, and it lands on someone’s head, yet none were legally responsible because two of them could have pushed the rock 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.

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 had not been taken into account. 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. 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 Maine Human Rights Act 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.

Three types of employer decisions that should be covered by our nondiscrimination laws slip thought the “but for” liability standard. First, and most obviously, are those in which employer discriminates because of protected class as well as for 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 for being a bad worker but would have fired employee even if employee were young and a bad worker.

The second type is when employer discriminates because of protected class status as well as for other reasons, and, although employer’s motivation based on protected class is strong enough to have led to the same decision without the other reasons, the same can be said for the other reasons, namely, they are strong enough for employer to have acted on them alone, too. Say employer fires employee for his age and his work performance, but it would have fired him for either his age or his performance alone. This means 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 because, even without the intent to discriminate because of age, employee would still have been fired.

Our criminal law has a standard to address this scenario. Criminal causation exists when “the result would not have occurred but for the conduct of the defendant operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant was clearly insufficient.” This standard has been relied upon by the Law Court in upholding the manslaughter conviction of a defendant who shot someone immediately before the victim was lethally shot by someone else.

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 types of cases, employers are discriminating based on protected-class status, but there is no violation of the antidiscrimination law under Gross. In the first, the unlawful motive may have been a relatively minor player but it still motivated the decision. In the last two, even the ringleaders go free. The problem, of course, is that employers are discriminating with impunity. If only “but for” discrimination is illegal, we are saying that it is sometimes ok for employers to rely on protected class status in making employment decisions.

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 damage would have occurred without the unlawful discrimination, the discrimination can hardly be said to have caused the damage.

But establishing liability under our nondiscrimination laws is different from awarding damages under them. A violation does not by itself mean that employee is entitled to receive anything or even that employer has to do anything. The remedy is determined after a violation is established, and its nature will depend on the circumstances. That is the right time to use the “but for” standard. The problem of not wanting to make employer pay for something that would have happened anyway can and should be addressed at the damages phase of the action.

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, compensatory damages, and she should not get her job back. This type of relief 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. This may include an order that employer receive nondiscrimination training and that it adopt and implement policies designed to prevent discrimination. Employer should also have to pay employee’s attorney’s fees in pursuing the violation and remedy, which will deter future misconduct and ensure that these types of cases are brought.

This is the way Title VII works. Prior to 1991, Title VII was worded the same as the Age Discrimination in Employment Act and the Maine Human Rights Act. A violation was established when employer took an adverse action against employee “because of” employee’s protected-class status. In 1989, in Price Waterhouse, the Supreme Court held that this required a showing of “but for” causation, although the burden of showing that the adverse action would have resulted anyway shifted to employer when “direct evidence” existed. Congress reacted by amending Title VII to establish a violation whenever protected class was “a motivating factor” in the decision, even though the same decision would have been made without the protected class being considered. “But for” causation comes into play when assessing an appropriate remedy. Only limited relief can be awarded if defendant proves that it would have taken the same action in the absence of the impermissible motivating factor.

The Title VII amendment strikes the proper balance here. The Age Discrimination in Employment Act, the federal Americans with Disabilities Act, and the Maine Human Rights Act do not have the same language, and they, too, should be amended. If employer acts because of protected-class status, that it may have made the same decision anyway does not change the fact that it acted for an illegal reason. The time to think about “but for” causation is at the damages phase, not when determining liability.