The recent Bostock v. Clayton County, Georgia decision, in which the Supreme Court of the United States ruled that an employer that fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964, has received a tremendous amount of attention. The Court’s decision has broad implications for employers and their employment counsel. Justice Neil Gorsuch’s majority opinion devotes much space to a discussion of the “but-for” causation standard.
Background on ‘But-For’ Causation
Section 2000e-2(a)(1) of Title VII states that employers may not “fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” (Emphasis added.) Confusion arose in federal district and appellate courts regarding the term “because of” and the resulting burdens of proof in Title VII actions when employment decisions resulted from legitimate and illegitimate motives.
The Civil Rights Act of 1991
Congress cleared up some of these issues with the Civil Rights Act of 1991, which amended Title VII to add Section 2000e-2(m), a section that provides that an “unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” (Emphasis added.) Thus, after the Civil Rights Act of 1991 became law, individuals could attempt to prove they were discriminated against because of their sex, for example, or they could prove a lesser level of causation—for example, that their sex was a motivating factor for the challenged decision, even if other, lawful factors also motivated the decision.
This second type of case is often referred to as a “mixed motive” case. Because this lesser burden of proof is easier for individuals to satisfy than the “but-for” causation standard, Congress implemented Section 2000e-5(g), which limits the relief available to individuals proceeding under Section 2000e-2(m)—disallowing damages, reinstatement, and the like (but allowing declaratory or injunctive relief and attorneys’ fees and costs), if an employer can demonstrate it would have taken the same action in the absence of the impermissible motive (sometimes referred to as the “same action” affirmative defense).
Despite the Civil Rights Act of 1991, confusion regarding burdens of proof in Title VII disparate treatment cases continued.
Supreme Court Jurisprudence
The Supreme Court did not address the meaning of “because” and the problem of causation following the Civil Rights Act of 1991 until Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). In Gross, the Supreme Court noted that the Age Discrimination in Employment Act (ADEA) made it unlawful to discriminate against an individual “because of” such individual’s age. Analyzing “because of,” the Court stated that age must be the ‘but-for’ cause of the employer’s adverse decision. Ultimately, the Court held that the ADEA’s “because of” language (which does not include an analogous Section 2000e-2(m) provision) does not allow a mixed-motive, “motivating factor” standard.
Later, in University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), the Supreme Court held that Title VII retaliation claims (unlike “status-based discrimination claims, i.e., those claims under Section 2000e-2(a)) must be proved according to traditional principles of “but-for” causation, not the “lessened causation test stated in Section 2000e-2(m).”
So which is it: “a” or “the”? Mere months before the Bostock decision, Justice Gorsuch offered a clue as to where he would land on the issue. In Comcast Corp. v. National Association of African American-Owned Media, No. 18-1171 (March 23, 2020), Justice Gorsuch authored the opinion of a unanimous Supreme Court, which held that a Section 1981 [of the Civil Rights Act of 1866] plaintiff bears the burden of showing that race was a but-for cause of the injury, and the burden remains constant over the life of the lawsuit.
In Bostock, Gorsuch provided a detailed analysis of what Title VII means when it says “because of” sex, noting that “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 . . . 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 in the original.)
Gorsuch then directly addressed whether sex (or other protected characteristics at issue) must be the “sole” but-for cause and found that “liability can sometimes follow even if sex wasn’t a but-for cause of the employer’s challenged decision.” (Emphasis in the original.) Justice Gorsuch went on to note that but-for causation “continues to afford a viable, if no longer exclusive, path to relief under Title VII.”
In disparate treatment (or “status discrimination”) cases under Title VII, an individual can use either the traditional “but-for” causation standard or the lesser mixed-motive standard. In Title VII retaliation cases, ADEA cases, Section 1981 cases, and others that currently utilize only the “but-for” causation standard, it is worth noting that the standard does not require that the protected characteristic (e.g., age) be the one and only cause of the adverse action. Rather, the individual must prove that the protected characteristic was a but-for cause. In other words, but-for the individual’s protected characteristic, the employer would not have taken the adverse employment action. The existence of other, legitimate reasons does not necessarily end the inquiry.
Additionally, a review of the recent, lesser-known Comcast decision may prove helpful when addressing motions to dismiss and motions for summary judgment, as Comcast emphasizes what a plaintiff must plead and prove during a case under a but-for causation standard.