Thursday, April 24, 2014
In late June of 2013, the Supreme Court decided University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517, 2530 (2013). The Court held that plaintiffs proceeding on a Title VII retaliation claim must establish their protected activity was the “but for” cause of an employment decision.
While Nassar focused on causation issues, two sentences hidden within the opinion resolve a central problem in employment discrimination law. Nassar clarifies that the lower courts are mistaken when they divide Title VII claims into single-motive and mixed-motive claims.
This organizational dichotomy, which has plagued the courts for more then two decades, created a host of difficulties in discrimination law that affected pleading, summary judgment, and jury instructions. Nassar represents a significant shift in how courts should perceive discrimination cases.
Even though the text of Title VII does not use the words single motive and mixed motive, courts often refer to 42 U.S.C. § 2000e-2(m) as establishing a “mixed motive” claim. Some courts distinguished these “mixed-motive” claims from what the courts called the “single-motive” claim provided under the statute’s main language in § 2000e-2(a). This organizational dichotomy had a host of practical consequences. In some cases, courts refused to instruct juries using the “motivating factor” language if a plaintiff did not refer to § 2000e-2(m) in her complaint. In some cases, courts refused to consider cases under the “motivating factor” standard if the plaintiff failed to make a mixed-motive argument at summary judgment. More importantly, the circuit courts have not been able to consistently resolve the interplay between the McDonnell-Douglas test and language in § 2000e-2(m). Many circuits have asserted single-motive claims and mixed-motive claims are distinct and require separate proof structures.
In two sentences, Nassar resolves most of this confusion. The Supreme Court provided: “For one thing, § 2000e–2(m) is not itself a substantive bar on discrimination. Rather, it is a rule that establishes the causation standard for proving a violation defined elsewhere in Title VII.” These sentences mean that there is no such thing as a “mixed-motive” claim or a “single-motive” claim. Courts and litigants are entitled to use the “motivating factor” definition of causation found in § 2000e–2(m) for all intentional discrimination claims.
These sentences significantly clarify the organizational structure of intentional discrimination and resolve several practical problems. It is now clear that plaintiffs are not required to invoke § 2000e–2(m) in their complaints to preserve the ability to later rely on the motivating factor standard. Courts can evaluate discrimination claims under this standard, even if the plaintiff does not specifically argue that her case is one of mixed motives. Courts can also avoid the practical problem of sorting out which cases are single-motive cases and which ones are mixed-motive cases, if the plaintiff wants to use the motivating factor standard.
While it may still be helpful for courts to use the language of single-motive and mixed-motive to describe the facts alleged by the parties or the underlying theories of their cases, it is no longer appropriate to use these words to describe separate claims.
Nassar does not resolve what to do about the multiple existing proof structures. The McDonnell-Douglas structure has remained persistent, despite repeated declarations of its death. It is likely that McDonnell-Douglas still remains as an alternate way to establish discrimination. Nassar does clarify that it is no longer appropriate to force single-motive factual scenarios based on circumstantial evidence solely into the McDonnell-Douglas mold. These plaintiffs have access to the motivating factor framework. This move is important because it answers a key question about how to conceptually organize discrimination law.