Post by Sandra Sperino, Associate Dean of Faculty and Professor of Law, University of Cincinnati College of Law.
Three fairly recent Supreme Court cases illustrate a change in the way that tort law is invoked in discrimination cases: Gross v. FBL Fin. Servs., Inc., Staub v. Proctor Hosp., and University of Texas Southwestern Medical Center v. Nassar. In these three cases, the use of tort law commands a majority of the Court. The use of tort law is also tied to textual claims, where certain words or concepts in discrimination law are directly interpreted through the lens of tort law.
In Gross, the Court held that the ADEA required the plaintiff to establish “but for” causation. In so holding, the Court rejected the idea that the ADEA should use the same causal standard as Title VII discrimination claims. After rejecting the Title VII causal standard, the Justices were faced with a choice. What should the ADEA’s causal standard be? For the majority, the answer was simple. The words “because of” mean “but for” cause. In support of this proposition, Justice Thomas cited two cases outside the employment discrimination context and a torts treatise. Importantly, the opinion ignores that tort common law provides more than one factual cause standard.
While Justice Thomas invoked what some would say is the “normal” causation model for torts, there are several problems with the analysis in the discrimination context. In a 1989 case, the Supreme Court rejected a “but for” cause analysis in Title VII discrimination cases. It did so for several reasons. First, the Court held that workers often will not be able to prove “but for” cause because the employer, not the employee, has the best information about what caused a particular employment decision. In many cases, the worker only has evidence that a protected trait was a motivating factor in the decision. In 1989, the Supreme Court thought it inappropriate that workers carry the entire causation burden, given the information asymmetry. Tort law also allows burdens to shift to the defendant when information asymmetries exist.
The Supreme Court also noted that tort notions of causation originally developed in the context of physical events, such as accidents. In discrimination cases, the cases often rely on determining the connection between a mental state or motive and an outcome. This affects how precise the causal inquiry can be and militates against the “but for” standard.
Importantly, given the default rules of at-will employment, some discrimination cases involve overdetermined events. For example, let’s say that multiple people are deciding whether to promote a woman. Some of the people think the woman is a jerk and that she should not be promoted. Others think she should not be promoted because she is likely to get pregnant in the future. The group members discuss these concerns and a consensus is reached to not promote the woman. In this situation, the woman might not be able to establish “but for” cause, even though a reasonable observer would say that her sex inappropriately infected the decision making process. Tort law allows a lower causation burden in cases involving overdetermined events.
The Supreme Court also invoked common law tort principles in Staub v. Proctor Hosp., in which the Court interpreted the Uniformed Services Employment and Reemployment Rights Act (USERRA) as containing a proximate cause element, even though the statute does not use the term “proximate cause.” (Courts have not typically invoked the concept of “proximate cause” in the discrimination context, and it remains to be seen how this addition will impact discrimination claims). In Staub, the Court’s short analysis begins with the statement: “[W]e start from the premise that when Congress creates a federal tort it adopts the background of general tort law.”
Staub uses two common law ideas: intent and proximate cause. The Court noted that intent requires a person to intend the consequences of his actions or believe that consequences are substantially certain to occur. The Court also cited the Restatement (Second) of Torts or cases that relied on common law proximate cause arguments to define proximate cause in the USERRA context. Lower courts have applied and are likely to keep applying this reasoning in the Title VII context because in the Staub decision, the Supreme Court emphasized the similarities between USERRA and Title VII.
The Nassar case continues this trend. In that case, the Court determined whether a plaintiff proceeding on a Title VII retaliation claim is required to establish but for cause. As with Gross, the opinion partially relied on the complex relationship between past Supreme Court precedents and the 1991 amendments to Title VII. However, this does not detract from the importance of the role of torts in this case. Once the Court decided not to follow Price Waterhouse and the 1991 amendments to Title VII, it must make a choice regarding what the causation standard should be. The choice the Court makes – “but for” cause – is largely driven by the majority opinion’s narrow view of tort law and by Gross, which also relied on tort law.
Nassar invoked tort law from the beginning of the opinion, defining the case as one involving causation and then noting that causation inquiries most commonly arise in tort cases. The majority engages in a lengthy discussion of causation’s role in tort law, with numerous citations to the Restatement and a torts treatise. The Court indicated that “textbook tort law” requires “but for” cause.
Together Staub, Gross, and Nassar represent a shift in the way the Supreme Court uses tort law. A reliable majority of justices are comfortable using tort law without much additional argument about why tort law is appropriate. Tort law is no longer just persuasive authority that serves as one source of potential meaning in discrimination cases. Rather, the justices can use tort law to find a specific meaning to particular statutory words or ideas.