Thursday, January 23, 2020
By Sandra Sperino
During Supreme Court oral argument in Babb v. Wilkie, Solicitor General Francisco tried to explain causation through an analogy to a person making an eggless cake. He imagined a scenario in which a statute demanded that a person make an eggless cake. If the person got tired, whipped up some eggs, but did not put them in the cake, the cake would still be an eggless cake. Babb Transcript
Although the analogy is a bit hard to follow, the Solicitor General appears to argue that the person wanting to make the eggless cake is the employer who wants to make decisions without taking protected traits into account. Following the analogy, someone (here the analogy breaks down a bit), considers the protected trait (puts eggs in a bowl), but then no traces of the protected trait appear in the final decision (because the eggs are dumped out before they go in the batter). In this scenario, the Solicitor General argues that there is no causation and the employee cannot prevail.
This blog post is a plea to the Supreme Court. Please, Supreme Court, do not import the idea of the eggless cake into discrimination law. Employment discrimination jurisprudence is confusing enough already. We do not need another analogy in the jurisprudence. Think of the distractions already caused by concepts like “cat’s paw.”
The eggless cake is a particularly bad analogy for several reasons, three of which I want to highlight. First, it imagines only one actor: the person making the cake. This actor knows what it is trying to accomplish (and is trying to follow the statute) and is the only actor involved in accomplishing it. In employment discrimination cases, there are often many actors: the employer, the people who work for the employer and who are involved in making decisions, and the worker who is affected by those decisions. Some employment decisions involve outside actors, like customers. In real life, the people charged with making the eggless cake are separate entities from the employer. That separateness can results in many disconnects between the employer and its employees. For example, those employees may not know the employer wants them to make an eggless cake; they may know it but want to make a cake with eggs; or they might be trying to make an eggless cake, but fail to realize that they used eggs. Likewise, the employer itself may be trying to follow the statute, may want to discriminate, or may be indifferent to whether it does.
Second, in real life, there are often multiple people impacting an outcome, and each one may be inserting eggs (consideration of a protected trait) into the outcome, with or without the other people knowing about it. For an example of this, see the facts of Price Waterhouse v. Hopkins, which highlight how the combined opinions of various actors can coalesce into a decision. The analogy would at least need to recognize that multiple people might be putting eggs into the batter.
Third, eggs are a terrible ingredient to include in the analogy. Anyone who has put an egg in a bowl knows that it is nearly impossible to get all of the egg out without completely washing the bowl. Some of the residue of the egg clings to the side. And this is the key question in discrimination cases. Once a protected trait is introduced into the process, whose responsibility is it to prove that the protected trait did not play a role in the outcome? During oral argument, Justice Alito wondered whether “but for” cause would exist if a little bit of the egg made it into the batter. (Transcript, p. 45).