Monday, August 10, 2020
I know I’m consumed with causation (there’s probably help available for that), but one of the many interesting things about Bostock is Justice Gorsuch’s focus on “but-for” causation. Some of what follows was triggered by an email from Steve Willborn, an unkind act given he’s well aware of my fixation.
Bostock, of course, recognizes that Title VII uses a “more forgiving standard” of motivating factor” under which “liability can sometimes follow even if sex wasn’t a but-for cause of the employer’s challenged decision.” (emphasis in original). But then the opinion goes back to but-for: “because nothing in our analysis depends on the motivating factor test, we focus on the more traditional but-for causation standard that continues to afford a viable, if no longer exclusive, path to relief under Title VII.”
Why did Justice Gorsuch choose the seeming harder causal hill to climb?
One possibility is obvious but seems unlikely: Title VII has the most permissive causation standard around, so focusing on motivating factor would limit the impact of the opinion as applied to the other 100 federal statutes barring “sex” discrimination so helpfully listed by Justice Alito’s dissent. Under that view, Justice Gorsuch wanted this opinion to control most if not all of these decisions. However, that possibility is inconsistent with the Justice’s later declaration that the Court was deciding only the Title VII question: “none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.” It also seems inconsistent with the Gorsuch jurisprudence so far as it has emerged from his short time on the Court.
Another possibility worth thinking about is that, although motivating factor is supposed to require less causal clout than but-for, perhaps Gorsuch thought that but-for was satisfied in the cases before him but motivating factor maybe not.
This seems odd, but might be explained by the Alito dissent’s insistence that discrimination on the basis of sexual orientation or transgender status isn’t sex discrimination because an employer can act on that basis without knowing the sex of the employee. For Alito, that would be the end of the matter (not that he doesn’t have other arguments), because disparate treatment requires intent to discriminate and intent requires knowledge of the protected trait: “An employer cannot intentionally discriminate on the basis of a characteristic of which the employer has no knowledge.”
Alito’s on pretty solid ground with respect to disparate treatment cases, but not (somewhat oddly for a committed textualist) in terms of the statute, which speaks only in terms of causation (“because”), not in terms of intent.
So is Gorsuch (who, recall, wrote for a six-Justice majority) bringing the Court around to what is arguably a pretty radical but clearly textualist position that might blur the law’s historic bifurcation of liability into disparate treatment (intent based) and disparate impact (effects based). Presumably, both theories would remain intact but plaintiffs may now have available a third option: proving that sex was a but-for cause of an adverse decision without the need to show knowledge/intent or adverse impact.
Implicit bias comes to mind, but, more generally, loosening the requirements for proving intent might be very helpful in instances in which the employer arguably lacks the requisite knowledge to satisfy Justice Alito. That would perhaps allow challenges to “big data” hiring practices that don’t seem to be susceptible to attack under current models.
In which case, Bostock might not only resolve the sexual orientation debate but also reframe our basic paradigm.