Tuesday, March 31, 2020
On March 23, 2020, the Supreme Court announced its opinion in Comcast v. National Association of African-American Owned Media. The Court held that a plaintiff is required to establish “but for” cause to prevail on a claim under 42 U.S.C. § 1981.
The true impact of Comcast will only be known when appellate and district courts apply the new standard in Section 1981 cases. In most cases, whether a trial court applies a “but for” cause standard or a “motivating factor” standard should not impact how a federal judge rules on motions to dismiss or motions for summary judgment.
Fed.R.Civ. P. 12(b)(6) provides the standard for motions to dismiss based on failure to state a claim, and Fed.R.Civ.P. 56 provides the standard for summary judgment motions. In discrimination cases, the defendant is typically the party moving for summary judgment or to dismiss the case. The procedural rules for these motions require federal courts to view all evidence and inferences to be drawn from the evidence in favor of the non-moving party. The non-moving party is typically the plaintiff. Given these procedural standards, it will often be inappropriate for a court to dismiss a case or grant summary judgment for the defendant based on the new causal standard. If a plaintiff has evidence that a protected trait played a role in an outcome, it will often be impossible to determine exactly what role the protected trait played at the motion to dismiss and summary judgment stages.
Take the following example. A plaintiff claims her employer fired her because of her race and presents evidence to support her claim. The employer claims it fired her because she was late for work three times. At least three possible causal paths emerge from these facts: (1) the employer acted because of race; (2) the employer acted because of the employee’s tardiness; or (3) the employer acted because of some combination of the employee’s race and the fact that she was late. In most cases, it will be difficult to a declare (consistent with the procedural posture) that a plaintiff will be unable to establish “but for” cause.
However, the causal standard applied in discrimination cases has been contested for decades. This is, in part, because in practice, the causal standard does play a role in whether courts dismiss cases. Some courts improperly equate “but for” cause with sole cause. This is despite the Supreme Court’s explicit instruction that “but for” cause and sole cause are two different causal standards.
Other courts have struggled with the concept that there can be more than one “but for” cause to an outcome. When describing “but for” cause, courts often state that the protected trait must be the “but for” cause of an outcome. Use of the word “the” gives the misimpression that there can only be one “but for” cause.
The Supreme Court has made it clear that a party can establish “but for” cause when multiple causes exist. In Burrage v. U.S., the Court noted:
Thus, “where A shoots B, who is hit and dies, we can say that A [actually] caused B’s death, since but for A’s conduct B would not have died.” LaFave 467–468 (italics omitted). The same conclusion follows if the predicate act combines with other factors to produce the result, so long as the other factors alone would not have done so—if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.
“But for” cause means that the cause was a necessary condition of the harm. An act can be a necessary condition of harm even when multiple acts are necessary to cause the harm. The Restatement provides examples of when a plaintiff can establish “but for” cause even when multiple causes exist. In one Restatement hypothetical a child suffers a seizure after a vaccination. If there is evidence that the vaccination intersected with a prior traumatic injury to cause the seizure, both the vaccination and the prior injury can be the “but for” cause of the seizure.
This outcome comports with the outcome in McDonald v. Santa Fe Trail Transp. Co., a case in which two white workers alleged race discrimination. The employer claimed that the two employees were terminated after stealing property. The employees argued that the employer did not terminate a black employee who engaged in similar misconduct. In McDonald, the Supreme Court specifically rejected the argument that the plaintiffs could not prove race discrimination in a case where the “dismissal was based upon their commission of a serious criminal offense against their employer.” The Court noted, “While Santa Fe may decide that participation in a theft of cargo may render an employee unqualified for employment, this criterion must be applied, alike to members of all races, and Title VII is violated if, as petitioners alleged, it was not.”
The ultimate impact of Comcast will depend on whether courts properly apply “but for” cause within the context of the procedural rules governing motions to dismiss and motions for summary judgment.