This week’s blog entry is an update on a previous blog entry and a discussion of the recent Supreme Court decision in Comcast, which involves the causation standard for §1981. Of course, what we are interested in is whether Comcast necessarily means the Supreme Court will decide but for causation is the standard for ADA matters outside of the retaliation and association discrimination contexts. I am already seeing the defense bar using this case in their briefs to say such is the case. Suffice to say, I don’t agree, and we will explore why that is the case below.

 

With respect to the update on the previous blog entry, the Eighth Circuit recently decided Harris v. Union Pacific Railroad Company. I am not going to spend a lot of time on Harris in this blog entry. However, a couple of things are worth pointing out with respect to Harris. The case was about whether the District Court properly certified a class action. The majority held that the District Court did not properly certify the class action because there were too many individual differences among disabilities. They ignored the issue of how Union Pacific Railroad uses a 1% rule to justify restrictions. The concurring opinion by Judge Kelly agrees that the class action was mistakenly certified with respect to all individuals with disabilities. However, Judge Kelly spent quite a bit of time on the 1% likelihood to get a disability rule saying that a class action would properly have been certified if the class action was restricted to people in individual job classes rather than to persons with disabilities as a whole. This case bears following because of the 1% rule being allowed as something that Union Pacific Railroad might, and it’s clear from the majority opinion the word is “might,” be able to defend.

 

With respect to Comcast Corporation v. National Association of African-American Owned Media and its significance for ADA causation, we are going to attack it in the following way: 1) The part of Justice Gorsuch opinion exploring §§1981-82; 2) the part of Justice Gorsuch opinion exploring why title VII motivating factor test does not get imported into §1981; 3) my counterpoint to the part of Justice Gorsuch’s opinion with respect to why the §§1981-82 discussion is distinguishable when it comes to the ADA; 4) my counterpoint/agreement to the part of Justice Gorsuch’s opinion with respect to his discussion of title VII; and 5) my thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Justice Gorsuch’s Reasoning Exploring §1981 and §1982

 

  1. Looking to §1981 particular statute’s text and history, the court saw no evidence of an exception to the but for causation rule.
  2. Citing to Nassar, which we discussed here, it is textbook tort law that a plaintiff seeking redress for a defendant’s legal wrong typically must prove but for causation.
  3. The ancient and simple but for common law causation test supplies the default or background rule against which Congress is normally presumed to have legislated against when creating its own new causes of action, including federal antidiscrimination laws like §1981 and the Age Discrimination in Employment Act.
  4. Justice Gorsuch doesn’t doubt that most rules have their exceptions. However, taken collectively, clues from the statute’s text, its history, and Supreme Court precedent persuade the court that §1981 follows the general rule.
  5. 1981 promises that all persons have the same right to make and enforce contracts, to sue, be parties, and give evidence as is enjoyed by white citizens. While the statute’s text does not expressly discuss causation, this language is suggestive and fits naturally with the ordinary rule that a plaintiff must prove but for causation. That is to say, if the defendant would have responded the same way to the plaintiff even if he had been white, an ordinary speaker of English would say that the plaintiff received the same legally protected right as a white person.
  6. It is the Court that created a judicially implied private right of action, doing so for the first time in 1975.
  7. As time has gone by, the Supreme Court has come to appreciate that private rights of action to enforce federal law must be created by Congress and that providing a cause of action where statute has not created them is a proper function for common law courts but not for federal tribunals.
  8. In the past, terms in the statutes such as “on account of,” and “by reason of,” have often been held to indicate a but for causation requirement.
  9. The common law in 1866 often treated showing but for causation as a prerequisite to a tort suit.
  10. The term “on the basis of race,” is strongly suggestive of a but for causation standard.
  11. Nothing in the previous §1981 decisions of the Supreme Court even gesture towards the possibility that the but for rule of causation sometimes might be overlooked or modified in the early stages of the case.
  12. With respect to §1982, the court has consistently held that “because of,” language is but for causation.

 

II

Justice Gorsuch on Why Title VII’s Motivating Factor Test Should Not Be Imported into §1981

 

  1. A critical examination of title VII’s history reveals more than a few reason to be wary of any invitation to import a motivating factor test into §1981.
  2. Motivating factor was first adopted in 1989 in the case of Price Waterhouse v. Hopkins, which can be found here.
  3. In the Civil Rights Act of 1991, Congress provided that a title VII plaintiff who shows that discrimination was even a motivating factor in the defendant’s challenged employment decision is entitled to declaratory and injunctive relief.
  4. A defendant may still invoke a lack of but for causation as an affirmative defense, but only to stave off damages and reinstatement, not liability in general.
  5. Title VII was enacted in 1964.
  6. Congress replaced the motivating factor test of the Supreme Court with its own version two years later.
  7. 1981 dates back to 1866 and has never said a word about motivating factors.
  8. Title VII and §1981 are two statutes with two distinct histories, and not a shred of evidence that Congress intended to incorporate the same causation standard.
  9. At the same time Congress added the motivating factor test to title VII, Congress also amended §1981 and did not even whisper about motivating factors.
  10. Like the motivating factor test, McDonnell Douglas is a product of title VII practice and does not remotely suggest that it applies to §1981.

 

III

Counterpoint to Justice Gorsuch’s Opinion Discussing §§1981-82 in Terms of How It Fits or Not with the ADA.

 

  1. Justice Gorsuch says that looking to §1981 statute’s text and history, no evidence of an exception exists. This is not the case with the ADA. For example, if you look at the legislative history of the amendments to the ADA, the term qualified was retained in order to preserve the McDonnell Douglas paradigm.
  2. Justice Gorsuch cites to Nassar numerous times in the opinion. Justice Gorsuch also cites to Gross. In Gross, the Supreme Court held that but for applies to Age Discrimination in Employment Act cases. Again, as we have discussed previously, that case is also distinguishable with respect to ADA causation. With respect to Nassar, we said that the case was a huge victory for both plaintiff and defense lawyers. With respect to defense lawyers, they get but for causation when it comes to retaliation. However, Justice Kennedy made it quite clear that status based discrimination, which is disability discrimination outside of retaliation and association, does allow for motivating factor.
  3. Justice Gorsuch says that clues from the statute’s text, its history, and precedent persuades him that §1981 follows the general rule. That doesn’t hold up with respect to the ADA for reasons we will see in a minute.
  4. The ADA specifically authorizes private lawsuits to enforce disability discrimination unlike §1981.
  5. While it is true that the Supreme Court has held that “on account of,” and “by reason of,” indicate but for causation, you can’t make that leap with respect to the ADA. For example, the ADA is based upon §504 of the Rehabilitation Act of 1973. That particular statute, 29 U.S.C. §794, says that causation is, “solely by reason of.” However, causation under title II of the ADA is “by reason of,” and Congress is presumed to have known that at the time title II was enacted, especially since the Rehabilitation Act was enacted in 1973. There has to be a reason why Congress did not import the word “solely,” into title II of the ADA. A plain reading of the two statutes leads to the conclusion that “solely by reason of,” and “by reason of, must be different causation standards. In fact, many cases across the country have so concluded.
  6. Similarly, when it comes to association discrimination and retaliation under the ADA, the relevant ADA statutory provisions are quite explicit that causation is “because of.” However, when it comes to disability discrimination outside of association discrimination and retaliation discrimination, the terms used are “on the basis of” (title I and title III), and “by reason of” (title II). Congress clearly could have adopted the same terminology as it did for association and retaliation claims but it did not.
  7. The ADA was signed into law in 1990, one year after McDonnell Douglas.
  8. Title I of the ADA specifically hooked into title VII of the Civil Rights Act for its remedies.
  9. While title II of the ADA hooks into title VI of the Civil Rights Act for its remedies, one is drawn to the fact that the word “solely,” is completely missing from ADA causation and it appears for Rehabilitation Act causation. As already mentioned, the ADA was 1990 and the Rehabilitation Act was 1973.
  10. The ADA is more than just a typical Civil Rights Act statute. Unlike §1981 and §1982, the ADA imposes upon covered entities the duty to make reasonable accommodations/modifications in order to get a qualified person with a disability to the same starting line as a person without a disability. That affirmative duty fundamentally changes any causation calculus with respect to an analogy to §1981-82.
  11. Absolutely true that but for causation is ancient. However, it is also ancient that where there is more than one but for causation, substantial factor or some test like that comes into play.

 

IV

Counterpoint/Agreement with Justice Gorsuch’s Discussion on Title VII.

 

  1. Title VII was enacted in 1964.
  2. Justice Kennedy in Nassar specifically states that status based discrimination claims are subject to a mixed motive analysis. Disability discrimination outside of association discrimination and retaliation, is status based discrimination.
  3. As mentioned above, evidence does exist that Congress intended to incorporate motivating factor into status based disability discrimination claims. Again, as mentioned above, legislative history exists that the word “qualified,” was specifically retained in order to preserve McDonnell Douglas as part of ADA discrimination cases.
  4. Congress did amend the ADA in 2009. That amendment did a lot of things, particularly with respect to definitional items and the overturning of Supreme Court cases. In particular for purposes of this blog entry, it got rid of the term “because of,” that appeared in the ADA as enacted in 1990 and replaced it with “on the basis of,” when it came to causation under title I of the ADA. Why would Congress do that if but for and on the basis mean the same thing? Interestingly, the amendments did not change the causation terminology for title II (see discussion above), and for title III.
  5. McDonnell Douglas, as Justice Gorsuch says, is a product of title VII practice, and the ADA is a civil rights statute. In fact, with respect to title I, remedies are specifically linked to title VII.

 

V

Thoughts/Takeaways

 

  1. You can expect that every single ADA case from here on out will be litigating over the applicability of Comcast to ADA matters.
  2. You can also expect that the Supreme Court will have to address this issue if Congress doesn’t do it first after the 2020 elections, depending upon results of course.
  3. The Supreme Court has given conflicting signals on causation. On the one hand, Justice Kennedy, as noted above, made it quite clear that status based discrimination, which disability discrimination is outside of association and retaliation, is motivating factor. On the other hand, in the case we discussed here, Justice Alito seemed to walk that back.
  4. Justice Gorsuch, as we discussed here, has a record of being open minded to the rights of persons with disabilities when he was on the lower courts. Justice Roberts while being a person that favors corporations quite a bit, has also been very open minded to persons with disabilities (such as here for example).
  5. Does motivating factor actually help plaintiffs? I once had a plaintiff lawyer tell me that it doesn’t. He thought that juries don’t understand it. However, that lawyer most certainly seems to be in the minority. If you are on the plaintiff side, which I am not always, I sure hope you read this blog entry.
  6. While it is absolutely true that “but for,” causation is ancient, it is also true that but for cases often have more than one “but for,” cause. Every one of us who has gone to law school knows that where there is more than one but for cause, but for causation turns into substantial factor, and many ADA cases involve more than one cause. Assuming a court goes with “but for,” a plaintiff attorney might also argue substantial factor where more than one cause exists. That is not exactly the same as motivating factor, but it’s close (see this blog entry for example).
  7. You can also expect in light of this decision a lot more litigation on whether the evidence involves direct evidence or indirect evidence. In the case of direct evidence, you come much closer to “but for,” causation than you do with respect to indirect evidence. If causation is “but for,” what does that even mean for McDonnell Douglas and direct evidence? It will create a mess. Will that lead to replacing direct and indirect evidence with convincing mosaic, such as we discussed here?
  8. Currently, the two hottest areas of ADA jurisprudence our Internet accessibility and service animals. You can now expect causation to join that category.

2 Responses to Just Because §1981 Causation is But For Causation, that Does NOT mean ADA causation is But For

The unresolved important question from Comcast is whether, and if so how a but for causation standard affects litigation at three different stages:

1. Pleading burdens. How if at all does the obligation to plead but for causation affect the sufficiency of a complaint under Twombly / Iqbal, both of which require a pleading to allege a plausible basis in fact but no more to survive a motion to dismiss a complaint? Although both cases differentiate between allegations of fact and allegations of legal conclusions, it’s not obvious why factual allegations that suffice to support a reasonable inference of motivating factor causation will not in the run of cases also support a reasonable inference of but for causation. To be sure in rare cases a plaintiff may plead herself out of court by pleading the absence of any basis from which to infer but for causation, but how likely is that in everyday litigation? SCOTUS specifically declined to decide whether the Comcast complaint satisfied but for causation, remanding to the court of appeals since SCOTUS likes to sit as a court of review, not first view.

2. Summary judgment absence of fact motions: In Nassar, SCOTUS suggested that the difference between motivating factor causation and but for causation will matter at the summary judgment stage, presumably because at that time defendants can under the Celotex trilogy assert that plaintiff lacks sufficient evidence from which a rational jury can find but for causation. But that statement by Justice Kennedy may as much reflect his inexperience as a trial judge as a good understanding of how litigation unfolds. Summary judgment cannot resolve disputes of fact nor can it resolve whether to draw reasonable inferences from contested facts. The boundary between motivating factor and but for causation is often a matter of inferences to be drawn from contested facts rather than concluding that one inference (motivating factor causation) is rational rather than the other inference (but for causation) is irrational. Again, there will be occasional easy cases where the undisputed evidence will foreclose a finding of but for causation, but many others will permit both findings, and many will, as has always been the case in Title VII practice, foreclose even a finding of motivating factor causation. How summary judgment practice unfolds will be critical to the assessing the effects of the but for causation standard since a trivially small cases actually proceed to trial.

3. Trial practice. Though but for causation obviously affects that language of jury instructions, the question of how it will affect Rule 50 motions for judgment as a matter of law is closely tied to how it will affect summary judgment practice since the same standards explicitly govern motions under Rules 56 and 50. Again, stay tuned for further developments, and remember that, outside qualified immunity issues irrelevant to ADA practice, district judge rulings denying motions to dismiss and motions for summary judgment are not appealable orders under the final judgment rule.

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