Monday, April 8, 2013

Washington Lawyers Committee for Civil Rights and Urban Affairs Amicus Brief in Nassar

BriefcaseThanks to Neal Goldfarb for bringing to our attention the amicus brief he has filed on behalf of the Washington Lawyers Committee for Civil Rights and Urban Affairs (and others) in the soon-to-be-argued Nassar case. The brief argues that the Gross U.S. Supreme Court ADEA causation case was wrongly decided, primarily on the ground that the Court in Gross was mistaken in concluding that but-for causation was required as a result of the ADEA's use of the word "because."  The brief is available here:

Here is a taste of the brief's argument below.

Petitioner argues that this case “should begin and end with the statutory text.” We agree.  However, we disagree with Petitioner about what the text means. That dis­agreement is not based on any dif­ference be­tween the statutory text here and the text at issue in Gross. Rather, we respectfully submit that Gross was wrongly decided.

The holding in Gross rests on the premise that but-for causation is required by the use of the word because in the phrase “because of such individual’s age.” But that pre­mise was unjustified: the concept of but-for caus­ation is not part of what the word because means. This is shown unmistakably by the evidence of how the word is actual­ly used—evidence that we will present in detail.

Since because meant the same thing in 1964 that it means today, Title VII’s prohibition against retal­iation has always covered cases involving mixed motives. Even if one does not accept Respondent’s argument that the retaliation provision is covered by the 1991 amend­ments to Title VII, those amendments did not eliminate the preexisting coverage of mixed-motive claims. The amendments could have had such an effect only if they operated as a partial repeal-by-implication. Such repeals are disfavored, and the amendments cannot reasonably be interpreted as having worked such a repeal.

The conclusion that but-for causation is unnecessary is not changed by Title VII’s legislative history. Pet­i­tioner recognizes that the legislative history cannot modify Title VII’s “plain statutory text.” And the one item that Petitioner offers from that history is incon­clusive.

Similarly insufficient to overcome the clear text are Petitioner’s warnings about the “jurispruden­tial mor­ass” that would supposedly result if mixed-motive retal­iation claims are allowed. Those warn­ings con­cern mat­ters of policy, not of statutory inter­pretation. And even as a policy matter, the warnings make little sense given that the 1991 amendments to Title VII endorse and preserve mixed-motive liability in ordinary disparate-treatment cases. Regard­less of how this case is decided, mixed-motive claims will continue to be brought. As a result, the ruling Petitioner seeks would do nothing to bring uniformity to the law of employment discrim­ination.

Read the whole thing. Very interesting and thoughtful argument.


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