Johanna T. Wise and Alex Meier
Several recent Supreme Court decisions have upended causation standards in the statutory alphabet soup of federal remedial rights. It is now clear that “but for” causation governs discrimination claims under the Age Discrimination in Employment Act (“ADEA”) and retaliation claims under Title VII of the Civil Rights Act of 1964 (“Title VII”). The Supreme Court held so in Gross v. FBL Financial Services, Inc. and University of Texas v. Nassar, respectively. Title VII’s discrimination provision contains language unique to that portion of the statute, so the Supreme Court left mixed-motive causation under that provision undisturbed.
Many circuits, however, have yet to definitively commit to one camp or another regarding the causal relationship necessary to establish liability under the Americans with Disabilities Act (“ADA”) and the Family and Medical Leave Act (“FMLA”). The principal split concerns whether mixed-motive causation or the more exacting but for causation standard is required to state a claim. Courts also disagree about whether an adverse employment action can have multiple but for causes.
The practical difference is significant. If mixed-motive causation controls, then an employee may have a viable claim if the adverse employment actions resulted from both permissible and impermissible considerations. If, on the other hand, but for causation controls, then an employee must prove that the adverse employment action would not have occurred without the impermissible consideration.
Open Questions In Causation
The more interesting questions emanate from the penumbra of those Supreme Court decisions. For example, the ADA contains identical language to Title VII’s retaliation provision. The ADA has traditionally permitted claims as long as discrimination is a “motivating factor.” Post-Nassar courts, however, are in unanimous disagreement about whether ADA plaintiffs must now demonstrate a more significant causal relationship between the adverse action and the alleged discriminatory intent.
So too with FMLA retaliation claims. FMLA retaliation claims historically have considered mixed-motive causation to be sufficient. Recently, several appellate courts, including the Fifth and Third Circuits, recognized that Nassar may require but for causation but opted to dodge the issue for the time being.
The difference between mixed-motive and but for causation is more than academic. Beyond the difference in proof, several district courts have found that but for causation requires that the alleged discriminatory action be the sole cause for the wrongful termination or adverse action. If, for example, a plaintiff alleges that she was terminated because of her age in violation of the ADEA, several courts have found that the plaintiff may not simultaneously claim that she was terminated because of her disability because there can only be one but for cause for the alleged adverse treatment. As Stanley Fish has said, “if you believe this, how can you also believe that?”
Courts, however, are equally splintered on whether Nassar and Gross obligate an employee to commit to one claim as they are regarding what degree of causation must be proven. Some judges are willing to dismiss claims at the motion-to-dismiss stage if the employee refuses to name the sole but for cause. Others will allow employees to claim multiple but for causes as “alternative pleadings” under Federal Rule of Civil Procedure 8(d)(3), which authorizes inconsistent claims and claims in the alternative.
Judge William Acker in the Northern District of Alabama is a particularly strong proponent of the stricter version of but for causation. In Savage v. Secure First Credit Union, a plaintiff claimed race discrimination and retaliation under Title VII, age discrimination under the ADEA, and disability discrimination under the ADA. Following a motion to dismiss, the court gave the plaintiff an ultimatum: either stand by her current complaint and have all of her but for causation claims dismissed with prejudice; or pick only one of her claims that require but for causation and dismiss the others. Judge Acker reasoned that but for causation requires that the unlawful action “would not have occurred in the absence of the alleged wrongful action or actions of the employer” because that standard requires “no proscribed motives” other than the single but for cause alleged. Because the plaintiff alleged multiple causes (age, retaliation, and disability), the plaintiff expressly claimed other irreconcilable and contradictory motivations played a role in her adverse treatment.
Like in Savage, an employer faced with a disgruntled employee who claims that adverse action taken against him was the product of several different types of discrimination may be able to winnow down the employee’s claims to one. This early limitation has several benefits as it forces the employee to commit to a single basis for the alleged adverse action and may decrease the scope and cost of discovery.
We expect some incoming clarity as several courts of appeal are considering cases that squarely present the issue. If the applicable jurisdiction has not committed to either camp, raising this argument may be an effective way to limit an employer’s exposure by reducing the lawsuit’s scope very early on in the litigation process.
If you have any questions regarding this topic, please contact the authors or your favorite Seyfarth attorney.