only use class materiel
The NCSL (National Conference of State Legislatures)Blog
“ SCOTUS: Race Must Be 'But For' Cause in Employment Discrimination Suits
By Lisa Soronen
In Comcast v. National Association of African-American Owned Media the U.S. Supreme Court held unanimously that a plaintiff who sues under 42 U.S.C. §1981 must plead and prove that race was the but-for cause of his or her injury . This case is particularly relevant to states and local governments as employers. The but-for causation is a standard favorable to employers.
Section 1981 , enacted in 1866, prohibits discrimination on the basis of race in contracting and employment, among other things. It states “[a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”
This case arose in the contracting context. African American entrepreneur Byron Allen, owner of Entertainment Studios Network (ESN), sought to have Comcast carry its channels. Comcast refused and ESN sued under §1981. ESN didn’t dispute that Comcast offered legitimate business reasons for not carryings its channels, but claimed these reasons were pretextual.
The 9th Circuit held that a §1981 plaintiff only has to show that race discrimination played “some role” in the defendant’s decision-making process, not that it was the “but-for” cause of the defendant’s conduct. Under this “more forgiving” causation standard, ESN’s lawsuit could proceed.
The Supreme Court rejected the 9th Circuit’s view and held that to win a §1981 case the plaintiff must plead and prove but-for causation. Justice Neil Gorsuch, writing for the court, noted that it is “textbook tort law” that plaintiffs must prove but-for causation. The court rejected ESN’s argument that §1981 creates an exception to the general rule.
According to the court: “While the statute’s text does not expressly discuss causation, it is suggestive. The guarantee that each person is entitled to the ‘same right . . . as is enjoyed by white citizens’ directs our attention to the counterfactual—what would have happened if the plaintiff had been white? This focus fits naturally with the ordinary rule that a plaintiff must prove but-for causation.”
ESN encouraged the court to adopt the “motivating factor” causation test from Title VII, which also prohibits race discrimination in employment. This standard is more favorable to employees than the but-for causation standard. The court declined, noting the differences between the statutes. “Title VII was enacted in 1964; this court recognized its motivating factor test in 1989; and Congress replaced that rule with its own version two years later. Meanwhile, §1981 dates back to 1866 and has never said a word about motivating factors. So we have two statutes with two distinct histories, and not a shred of evidence that Congress meant them to incorporate the same causation standard.”
Justice Ruth Bader Ginsburg wrote a concurring opinion noting that the court didn’t decide whether §1981 applies to earlier stages of the contract-formation process because this question wasn’t presented in this case. She stated that it must apply, otherwise, employers could, for example, reimburse white interviewees but not black interviewees or even refuse to consider black applicants.
States and local governments, like private employers, can be sued for employment discrimination under Section 1981. The 9th Circuit decision had numerous downsides for employers.
First, it is easier for employees to prove that discrimination was one of a number of factors in an employment decision rather than the sole factor.
Second, if the Supreme Court had agreed with the 9th Circuit, Section 1981 will be an even more attractive vehicle to sue employers. Compared to Title VII, it has a longer statute of limitations, no damages cap, and presumably no defense to damages where the employer would have made the same decision regardless of race.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.
_________________________________________________________
Babb v. Wilkie (2020)
Supreme Court ruling will make it easier for feds to prove age discrimination
By Nicole Ogrysko | @nogryskoWFED
April 7, 2020 4:38 pm
Federal News Network
Federal employees may have an easier time proving age discrimination, thanks to a new ruling from the Supreme Court.
In an 8-1 ruling, the Supreme Court on Monday said federal employees have a lower burden to prove differential treatment under the Age Discrimination in Employment Act (ADEA) compared to their counterparts in the private sector and state and local governments.
The ADEA protects certain employees and job applicants who are 40 years and older from age-based discrimination in hiring, firing, promotion or demotion and other conditions of employment.
The case before the Supreme Court came from Norris Babb, a clinical pharmacist at the Department Veterans Affairs who had sued the agency back in 2014. Babb said she was denied a promotion, holiday pay and training and development opportunities, in part, because of her age.
According to the VA’s arguments, Babb could only obtain relief under the ADEA if her age was a “but-for cause” of the personnel action, meaning she’d have to prove she would have otherwise received the promotion or training if her age wasn’t taken into account.
“This interpretation, the government contends, follows both from the meaning of the statutory text and from the ‘default rule’ that we have recognized in other employment discrimination cases, namely, that recovery for wrongful conduct is generally permitted only if the injury would not have occurred but for that conduct,” Justice Samuel Alito, who delivered the court’s opinion, said in Monday’s ruling.
Babb, however, argued the ADEA prevents an agency from using age at any point during the personnel decision-making process.
The court debated the correct interpretation and came to a relatively easy decision. Under the ADEA, the court said, federal employees need not prove age as a “but-for cause” for a personnel action itself. Instead, they must simply prove they received differential treatment due to their age during the personnel decision-making process.
“The statute does not say that ‘it is unlawful to take personnel actions that are based on age;” it says that ‘personnel actions… shall be made free from any discrimination based on age,'” the court’s opinion reads. “As a result, age must be a but-for cause of discrimination — that is, of differential treatment — but not necessarily a but-for cause of a personnel action itself,”
Put another way, the court contends federal employees must prove their age was the reason for differential treatment that led to a personnel action, but not the reason for the firing, suspension, promotion or decision itself.
Alito uses an example to illustrate the argument, where an agency must decide whether to promote 35-year-old “employee A,” or 55-year-old “employee B.” Under a hypothetical policy, an agency will first rank these two employees up for promotion using a numerical score based on non-discriminatory factors. Using these factors, “employee A” receives a score of 90, while “employee B” earns a score of 85. Next, the agency will dock five points from employees over the age of 40 and will give the promotion to the employee with the most points.
Under this hypothetical scenario, “employee B,” the 55-year-old, has a final score of 80, while “employee A,” the 35-year-old, has a score of 90. “Employee A,” gets the promotion.
“This decision is not ‘made’ ‘free from any discrimination’ because employee B was treated differently (and less favorably) than employee A (because she was docked five points and A was not),” Alito said. “And this discrimination was ‘based on age’ because the five points would not have been taken away were it not for employee B’s age.”
“Employee A” would have won the promotion even if the agency hadn’t considered the ages of both workers and hadn’t docked points from the older employee’s score, Alito acknowledged. But the agency still claims liability under the ADEA, the court argued.
The ADEA, which Congress passed into law in 1967, originally applied only to private sector employees. Congress expanded the law’s scope back in 1974 to cover, state, local and federal governments.
Lawmakers at the time simply added state and local government to the definition describing an “employer” under the ADEA. But Congress, however, added separate language outlining a distinct statutory scheme for the federal sector, a point that the Supreme Court said is notable.
“We are not persuaded by the argument that it is anomalous to hold the federal government to a stricter standard than private employers or state and local governments,” Alito said. “That is what the statutory language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily done so.”
This ADEA language ultimately gives federal employees a lower burden of proof in age discrimination cases compared to their private sector counterparts. The ADEA, however, does set tougher standards for federal employees seeking reinstatement, back pay, damages or some other relief related to a firing, demotion, suspension or other personnel action. These employees must, in fact, show age discrimination was a “but-for cause” of the personnel action, the court said.
“Plaintiffs are not without a remedy if they show that age was a but-for cause of differential treatment in an employment decision but not a but-for cause of the decision itself. In that situation, plaintiffs can seek injunctive or other forward-looking relief,” Alito said.
Only Justice Clarence Thomas, who said he interpreted the ADEA language differently, disagreed with the court’s opinion. Simply requiring federal employees to prove age discrimination “taint[ed] the making of a personnel action, even if the agency would have reached the same outcome absent any age-based discrimination,” is an “unworkable” rule, he argued.