Wednesday, April 1, 2020
In Comcast v. National Association of African-American Owned Media the Supreme Court held that a plaintiff is required to establish “but for” cause to prevail on a claim under 42 U.S.C. § 1981. After Comcast, it is unclear if lower courts will be able to apply a “motivating factor” standard in cases where tort law would not apply “but for” cause. In Comcast, the Court claims to be applying tort causation to discrimination law.
While it is correct that “but for” cause is often the starting point for causation doctrine in a torts case, “but for” cause is not a stand-alone concept in tort law. Instead, it is part of a larger bundle of causal standards, that together form the common law notion of factual cause. It is not clear whether the Court in Comcast intends to apply tort law (which would allow for various causal standards) or whether it intends to impose a truncated version of tort law on the discrimination statutes.
The common law does not use “but for” cause alone, because doing so creates results that are unfair and that, in some cases, do not make sense. For example, tort law sometimes allows a partial burden shift to the defendant on causation issues and sometimes changes the substantive standard when “but for” cause produces strange results. Applying “but for” cause without the rest of the bundle is not consistent with the common law. Doing so places a higher factual cause standard on a plaintiff seeking a remedy under a federal civil rights statute than the common law would require.
In other cases, the Supreme Court described factual cause more completely. It stated:
[T]he availability of alternative causal standards where circumstances warrant is, no less than the but-for test itself as a default, part of the background legal tradition against which Congress has legislated. It would be unacceptable to adopt a causal standard so strict that it would undermine congressional intent where neither the plain text of the statute nor legal tradition demands such an approach.
Paroline v. United States, 572 U.S. 434, 458 (2014) (internal citation omitted). It is not clear whether the Court will allow plaintiffs in particular cases to argue that the default “but for” standard is not appropriate given the particular facts of the case.