Friday, February 14, 2014
There's an interesting post from the Whistleblower Law Blog, Burrage v. U.S. — Can a Heroin Dealer Help to Clarify Whistleblower Law?, the theme of which is that the but-for causation standard that emerged in Gross and Nassar is likely to spread across all federal statutes that do not explicitly adopt a lower standard.
I think that's correct. Although Burrage, a unanimous decision, can be distinguished as involving a criminal statute and thus subject to the rule of lenity, the pattern across recent cases is pretty clear.
However, there are a number of employment-related statutes that explicitly employ language suggesting lesser causation -- Title VII status discrimination cases and USERRA (for "motivating factor") and a whole raft of newer federal whistleblower laws, starting with SOX, that not only use "contributing factor" but also require proof of the "same decision anyway" by the employer to be by "clear and convincing evidence."
And then there are the older Supreme Court cases that, in the §1983 context (Mt. Healthy for First Amendment and Texas v. LeSage for the Equal Protection Clause) or under the NLRA (Transportation Management) that adopt a lower causation/burden shifting approach. The lower courts aren't supposed to "predict" what the Supreme Court would do when there's a precedent on point, even if later precedents seem to undermine it, which suggests that that authority should remain good law unless and until the Supreme Court gets around to overruling it. (The Court did advert to those cases in a footnote in Gross, but did so in atempting to distinguish them rather than cast doubt on their authority, which would seem to reinforce the need for lower courts to follow them until instructed otherwise).
And, then, of course, there are statutes, such as §1981, which don't use causation language to begin with.
It's not that I doubt where the current majority wants to go; I'm just pointing out that the path is more rocky than it might seem at first.