Nassar’s Silver Lining

Author: Sandra F. Sperino, Professor of Law, University of Cincinnati College of Law

In late June of 2013, the Supreme Court decided University of Texas Southwestern Medical Center v. Nassar.[1]  The Court held that plaintiffs proceeding on a Title VII retaliation claim must establish their protected activity was the “but for” cause of an employment decision.  This holding means that plaintiffs must establish a lower “motivating factor” standard for discrimination claims and the higher “but for” standard for retaliation claims.  In this regard, Nassar complicates an already tangled legal landscape.

Nassar offers a silver lining for those seeking a less complex employment discrimination jurisprudence. Two sentences hidden within the opinion resolve a central problem in employment discrimination law.[2]  Nassar clarifies that the lower courts are mistaken when they divide Title VII claims into single-motive and mixed-motive claims.  This organizational dichotomy, which has plagued the courts for more then two decades, created a host of difficulties in discrimination law that affected pleading, summary judgment, and jury instructions.  Nassar represents a significant shift in how courts should perceive discrimination cases.

Mixed Motive Chaos

A brief history of discrimination law highlights the importance of Nassar.  When Congress enacted Title VII of the Civil Rights Act, it did so in broad language that made it unlawful for employers to take certain actions “because of” a protected trait.[3]  During the 1960s, plaintiffs often claimed that employers were making explicit race- or gender-based decisions according to company policies.[4]  These claims of facially discriminatory policies later became grouped into a type of individual disparate treatment case referred to as a direct evidence case.[5]  The courts tended to use simple formulations in evaluating direct evidence cases, essentially requiring a plaintiff to establish that a decision was taken because of a protected trait.[6]

During the 1970s, the types of discrimination cases being heard by federal courts began to change.  While the 1970s still witnessed numerous claims brought against employers and unions based on facially discriminatory policies, claims brought by individuals alleging non-policy based discrimination began to increase.[7]  In McDonnell Douglas Corp. v. Green, the Supreme Court created a three-part, burden-shifting test for analyzing individual disparate treatment cases when the plaintiff does not possess direct evidence of discrimination.[8]

The McDonnell-Douglas test focused on the employer’s non-discriminatory reason for its action and implicitly suggested that discrimination claims might only be cognizable if the plaintiff alleged that the employer acted only because of a discriminatory reason.   In the 1989 case of Price Waterhouse v. Hopkins, the Supreme Court interpreted Title VII as allowing so called “mixed-motive” claims.[9]  In 1991, Congress amended Title VII.[10]  Congress added § 2000e-2(m) to the statute.  That section provides that a plaintiff may prevail on a Title VII claim by establishing a protected trait played a motivating factor in an employment decision.  Congress also created an affirmative defense, which, if proven, would be a partial defense to damages.[11]

Even though the text of Title VII did not use the terms “mixed motive,” courts began referring to § 2000e-2(m) as establishing a “mixed motive” claim.[12]  Some courts distinguished these “mixed-motive” claims from what the courts called the “single-motive” claim provided under the statute’s main language in § 2000e-2(a).

This organizational dichotomy had a host of practical consequences.  In some cases, courts refused to instruct juries using the “motivating factor” language if a plaintiff did not refer to § 2000e-2(m) in her complaint.[13]  In some cases, courts refused to consider cases under the “motivating factor” standard if the plaintiff failed to make a mixed-motive argument at summary judgment.[14]

More importantly, the circuit courts have not been able to consistently resolve the interplay between the McDonnell-Douglas test and language in § 2000e-2(m).  Many circuits have asserted single-motive claims and mixed-motive claims are distinct and require separate proof structures.[15]  The Fifth Circuit Court of Appeals created a hybrid structure that combines McDonnell Douglas and motivating factor language.[16]  This means that litigants and courts use different proof structures for proving discrimination claims depending on the circuit in which the case is heard.

Intentional Discrimination is One Claim

 In two sentences, Nassar resolves most of this confusion.  The Supreme Court held: “For one thing, § 2000e–2(m) is not itself a substantive bar on discrimination. Rather, it is a rule that establishes the causation standard for proving a violation defined elsewhere in Title VII.”  These sentences mean that there is no such thing as a “mixed-motive” claim or a “single-motive” claim.  Courts and litigants are entitled to use the “motivating factor” definition of causation found in § 2000e–2(m) for all intentional discrimination claims.

These sentences significantly clarify the organizational structure of intentional discrimination and resolve several practical problems.  It is now clear that plaintiffs are not required to invoke § 2000e–2(m) in their complaints to preserve the ability to later rely on the motivating factor standard.  Courts can evaluate discrimination claims under this standard, even if the plaintiff does not specifically argue that her case is one of mixed motives.  Courts can also avoid the practical problem of sorting out which cases are single-motive cases and which ones are mixed-motive cases, if the plaintiff wants to use the motivating factor standard.  While it may still be helpful for courts to use the language of single-motive and mixed-motive to describe the facts alleged by the parties or the underlying theories of their cases, it is no longer appropriate to use these words to describe separate claims.

Nassar does not resolve what to do about the multiple existing proof structures.  The McDonnell-Douglas structure has remained persistent, despite repeated declarations of its death.[17]  It is likely that McDonnell-Douglas still remains as an alternate way to establish discrimination.  Nassar does clarify that it is no longer appropriate to force single-motive factual scenarios solely into the McDonnell-Douglas mold.  These plaintiffs have access to the motivating factor framework.  This move is important because it answers a key question about how to conceptually organize discrimination law.

---