After our client prevailed – in part on summary judgment and then completely after a jury trial and again in post-trial motions and on appeal – in a suit that alleged multiple employment law claims (including retaliation), the Delaware Law Review published an article that I wrote titled The Causation Standard for Retaliation Claims Under Employment Discrimination Statutes: Ambiguity of “Central Importance” (available here). The case we litigated and my article prominently featured a then very recent case from the United States Supreme Court (“SCOTUS”) – University of Texas Southwestern Medical Center v. Nassar, which dealt with the important issue of the causation standard in retaliation cases under Title VII. In Nassar, SCOTUS expressly stated its concern about it being too difficult (without a heightened causation standard) to dismiss dubious claims at the summary judgment stage, which was found to be “inconsistent with the structure and operation of Title VII.”
On August 29, 2016, the United States Equal Employment Opportunity Commission (“EEOC”) issued a final “Enforcement Guidance on Retaliation and Related Issues (available here). The EEOC also issued a question-and-answer publication (available here) and a Small Business Fact Sheet (available here). Information about the causation standard (including repeated reference to the Nassar case) features prominently in the above-referenced material.
There are a number of noteworthy items in this lengthy guidance (e.g., the meaning/ scope of “opposition” activity and “materially adverse action” and a rejection of the so-called “manager rule” – all of which are blog-worthy). However, the issue of causation is what I would like to discuss briefly here.
As explained by the EEOC: There are different causation standards for proving retaliation, depending on the type of claim and the employer. For retaliation claims against private sector employers and state or local government employers, the Supreme Court has ruled that the causation standard requires that “but for” a retaliatory motive, the employer would not have taken the adverse action. “But for” causation means, even if there are multiple causes, the materially adverse action would not have occurred without retaliation. For Title VII and ADEA retaliation claims against federal government employers, due to different statutory wording, the Commission has held that the “motivating factor” causation standard applies. The “motivating factor” standard can be met even if the employer would have taken the same action absent a retaliatory motive.
Since Nassar, cases have varied on the issue of whether “but-for” means “solely.” Early on, a District of Delaware Magistrate Judge adopted a Second Circuit interpretation that “but-for” does not mean “only.” However, the dissent in Nassar certainly seemed to hear the majority to be getting at (or at least approaching) a sole-cause standard. Specifically, a dissenting justice stated that it was “lost on the Court” that Congress had “considered and rejected an amendment that would have placed the word ‘solely’” before protected classes in the discrimination provision; and that a prime sponsor of Title VII commented that a “sole cause” standard would render the Act “totally nugatory.” Moreover, in the wake of Nassar, there was an attempt in Congress (the House and Senate) to “clarify” that a plaintiff need not establish that protected activity was “the sole cause of the employment practice” – thus arguably implying an understanding that Nassar held otherwise. Alas, those bills died in committee. Furthermore, the Third Circuit recently (in June 2016) stated that the Nassar standard requires evidence showing that the employer’s reason for its action was false and retaliation for engaging in the protected activity was “the” real reason for its actions. There most certainly have been some courts that read “but-for” to mean “sole” or “only” (albeit others certainly disagree).
In the new guidance, the EEOC opines that the “but-for” causation standard does not require that retaliation be the “sole cause” of the action. The EEOC states that there can be multiple “but-for” causes, and retaliation need only be “a but-for” cause of the materially adverse action in order for the employee to prevail. The EEOC further states that “The Supreme Court has explained how ‘but-for’ causation can be demonstrated even if multiple causes exist: ‘[W]here A shoots B, who is hit and dies, we can say that A [actually] caused B’s death, since but for A’s conduct B would not have died.’ The same conclusion follows if the predicate act combines with other factors to produce the result, so long as the other factors alone would not have done so-if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.” (internal citation omitted). The EEOC opines that “[d]ifferent types or pieces of evidence, either alone or in combination, may be relevant to determine if the above causation standard has been met. In other words, different pieces of evidence, considered together, may allow an inference that the materially adverse action was retaliatory.” In so-stating, the EEOC adopts the image of a “convincing mosaic” as being sufficient to establish but-for causation.
As I pointed out in my article, the same case cited by the EEOC (i.e., Burrage v. United States, 134 S. Ct. 881, 888-89 (2014)) states that “but-for causality” means both more than “contributing” and more than “substantial”; and explains that it was insufficient to establish a “material element and a substantial factor in bringing” about the conduct. Using a sports analogy, the Court in the Burrage case (authored by the late Justice Scalia) described the but-for causation standard as follows:
“Consider a baseball game in which the visiting team’s leadoff batter hits a home run in the top of the first inning. If the visiting team goes on to win by a score of 1 to 0, every person competent in the English language and familiar with the American pastime would agree that the victory resulted from the home run. This is so because it is natural to say that one event is the outcome or consequence of another when the former would not have occurred but for the latter. It is beside the point that the victory also resulted from a host of other necessary causes, such as skillful pitching, the coach’s decision to put the leadoff batter in the lineup, and the league’s decision to schedule the game. By contrast, it makes little sense to say that an event resulted from or was the outcome of some earlier action if the action merely played a nonessential contributing role in producing the event. If the visiting team wound up winning 5 to 2 rather than 1 to 0, one would be surprised to read in the sports page that the victory resulted from the leadoff batter’s early, non-dispositive home run.”
Although at least one court has interpreted the shooting/ poisoning and baseball analogies as supporting the conclusion that “but-for” means the sole or only cause, it now is very clear (expressly stated) that the EEOC does NOT view “but-for” as meaning “solely.”
So is the causation standard now clear? Personally, I don’t think so. I refer readers back to my article from 2014. Arguably, the EEOC’s view on “but-for” causation lowers or otherwise minimizes the heightened but-for cause test established by SCOTUS in Nassar. Indeed, the EEOC does not mention the “more than contributing” or “more than substantial” language of the Burrage case. Moreover, it should be noted that EEOC’s substantive arguments were rejected in Nassar – when EEOC argued that the motivating factor standard applies to retaliation claims. My guess is that the EEOC will lean as close to interpreting “but-for” causation as a motivating factor as they can – leaving room for argument that the standard is incorrect.
Time will tell, but I highly doubt that we have seen the last of disputes about the causation standard in Title VII retaliation cases.