Background
Disparate treatment, meaning intentional discrimination, is the most commonly alleged claim under Title VII of the Civil Rights Act of 1964 and other EEO laws. In the vast majority of EEO cases, a plaintiff alleging disparate treatment will try to establish a violation by relying on one or both of the two disparate treatment frameworks established in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).- The McDonnell Douglas framework is generally understood as having three prongs: 1) the plaintiff establishes a prima facie case, which is essentially a weak inference that an adverse employment decision was based on a prohibited characteristic, such as sex or race; 2) the defendant produces evidence that the adverse employment decision was based on a nondiscriminatory reason, such as job performance; and 3) the plaintiff proves that the employer's asserted reason in prong 2 was a pretext for discrimination based on a prohibited characteristic.
- The Price Waterhouse framework is generally understood as having two prongs: 1) the plaintiff establishes that a prohibited characteristic was a motivating factor in an adverse employment decision; 2) the employer can limit relief if it proves that it would have made the same decision, even if it had not relied on a prohibited characteristic.
The Eleventh Circuit's Decision in Quigg
Linda Quigg alleged that the school district decided not to renew her contract as superintendent because of her sex. The evidence showed, for instance, that some board members had made statements demonstrating sex bias, such as "it is time to put a man in there.” In addition, however, there was evidence that some school board members thought that Quigg's job performance was unsatisfactory.In the view of the Eleventh Circuit, because there was evidence of both legitimate and illegitimate motives, the district court erred in analyzing Quigg's claim under the McDonnell Douglas framework, which is "predicated on proof of a single, 'true reason' for an adverse action." Quigg could instead prevail by merely establishing that sex "was a motivating factor" in the decision not to renew her contract.
The dichotomy described in Quigg -- between McDonnell Douglas and single-motive claims, on the one hand, and Price Waterhouse and mixed-motive claims, on the other hand -- springs directly from the Supreme Court's own framing of disparate treatment analysis. As explained in Justice Brennan's plurality decision in Price Waterhouse, the McDonnell Douglas framework assumes that "either a legitimate or an illegitimate set of considerations led to the challenged decision."
The Different Forms of Causation in Disparate Treatment Claims
Although the disparate-treatment dichotomy recognized in Quigg and Price Waterhouse may appear logical at first blush, it does not reflect how most courts actually seem to view the differences between the McDonnell Douglas and Price Waterhouse frameworks. To understand why, it is necessary to delve deeply into the underlying issue of causation.Three forms of causation are commonly discussed in the analysis of disparate treatment claims: 1) sole cause; 2) but-for cause (also referred to as determinative cause); and 3) motivating factor. Essentially, these are three levels of causation ordered from most stringent to least stringent. To see the relationship between these forms of causation more clearly -- while also amping up the nerd factor -- imagine a Venn diagram with three circles representing the three forms of causation. The circle representing sole cause would entirely fit within the circle representing but-for cause, and the but-for cause circle, in turn, would entirely within the motivating-factor circle. In other words, any factor that is the sole cause for an adverse employment decision is also necessarily a but-for cause, and any but-for cause is also necessarily a motivating factor. The converse, however, is not necessarily true as a motivating factor need not be a but-for cause, and a but-for cause likewise need not be the sole cause. Consequently, it is easiest for a plaintiff to establish that a prohibited characteristic was a motivating factor, and hardest to establish that it was the sole factor.
McDonnell Douglas and But-for Causation
Given the Supreme Court's formulation of the McDonnell Douglas framework as an either-or test, it might not be unreasonable to conclude that a plaintiff relying on that framework is required to establish that a prohibited characteristic was the sole factor for the adverse employment decision. Yet that conclusion would be incorrect, and lower courts have clarified that a plaintiff relying on the McDonnell Douglas framework need only establish but-for factor causation. As its name implies, "but-for causation" means that a prohibited characteristic was determinative: but for the protected characteristic, the employer would not have made the same adverse employment decision.Two helpful Third Circuit decisions, the latter written by then-Court of Appeals Judge Alito, are Miller v. CIGNA, 47 F.3d 586 (3d Cir. 1995) (en banc), and Watson v. SEPTA, 207 F.3d 207 (3d Cir. 2000). A recent Fourth Circuit decision discussing the relationship between the McDonnell Douglas framework and but-for causation is Foster v. University of Maryland - Eastern Shore, 787 F.3d 243 (4th Cir. 2015).
Once the McDonnell Douglas framework is understood as requiring only but-for causation, it becomes apparent that a mixed-motive claim can be established under that framework. Consider, for instance, the hypothetical example of an African American employee alleging that he was fired because of his race after getting in a fight at work with a white coworker who was not fired. The evidence might show not only that the plaintiff would not have been fired if he were white but also that he would not have been fired if he had not gotten in a fight. Under such circumstances, legitimate factors and illegitimate factors would both have been but-for causes, and yet the McDonnell Douglas framework could still be used to establish a violation by showing that the plaintiff would not have been fired but for his race, regardless of the role played by nondiscriminatory factors.
Price Waterhouse and Motivating-Factor Causation
Under prong 1 of the Price Waterhouse framework, the plaintiff generally establishes motivating-factor causation by drawing a link between discriminatory bias and the challenged action, such as through biased statements or a facially discriminatory policy. But what exactly does it mean to say that a prohibited characteristic was a "motivating factor"? Unlike the related concepts of "sole cause" and "but-for cause," which are fairly easy to understand, the concept of a "motivating factor" is much more amorphous. Some judges, including Supreme Court Justices, have occasionally used the term "substantial factor" interchangeably with "motivating factor." More helpful perhaps is the Price Waterhouse plurality's intriguing example of an object's being moved by two simultaneous physical forces, either of which, acting alone, could have moved the object. Although both forces "caused" the object to move, neither was a but-for cause, as the other force alone could have brought about the same result. 490 U.S. at 241. This example illustrates that, at a minimum, the term "motivating factor" includes not only a but-for cause but also a cause that, standing alone, would have produced the same result.Comparing McDonnell Douglas and Price Waterhouse
The incorporation of different causation standards under the two competing disparate treatment frameworks means that prong 3 of the McDonnell Douglas framework is essentially the converse of prong 2 of the Price Waterhouse framework. Under prong 3 of McDonnell Douglas, the plaintiff is required to establish that a prohibited characteristic was a but-for cause, whereas under prong 2 of Price Waterhouse, the defendant is required to establish that a prohibited characteristic was not a but-for cause.
As a practical matter, however, the key difference between the two frameworks may lie more in which party bears the burden of proof as to the role played by the employer's asserted nondiscriminatory reason. Under prong 3 of the McDonnell Douglas framework, the plaintiff must have sufficient evidence to undermine the credibility of the employer's asserted nondiscriminatory reason. Under prong 2 of the Price Waterhouse framework, by contrast, the defendant must have sufficient evidence to show that its asserted nondiscriminatory reason would have resulted in the same adverse employment decision. If there is meager evidence regarding the role played by the employer's asserted nondiscriminatory reason, then the placement of the burden of proof could be a significant factor affecting which party will prevail.
Given the lower causation standard under Price Waterhouse than under McDonnell Douglas, the former should be more favorable to a plaintiff, at least when properly applied by a fact finder. In many cases, however, a plaintiff may be unable to establish causation without resort to the McDonnell Douglas framework. Despite the fuzziness of the concept of a "motivating factor," it is nevertheless clear that it is much easier for a plaintiff to establish a prima facie case under the McDonnell Douglas framework than to establish motivating-factor causation. Even in the absence of sufficient evidence, such as biased statements, drawing a link between a protected characteristic and an adverse employment decision, a plaintiff might be able to prevail nevertheless under the McDonnell Douglas framework by producing evidence that establishes a prima facie case and that undermines the link between the defendant's asserted reason and the adverse employment decision. In other words, the evidence available to a plaintiff often may only be conducive to proving discrimination indirectly under the McDonnell Douglas framework, and not to proving it more directly under the Price Waterhouse framework.
As discussed, however, the mere existence of both legitimate and illegitimate motives would not render Quigg's claim inherently unsuitable for analysis under the McDonnell Douglas framework. If, for example, Quigg had produced evidence that a male superintendent was treated more favorably under similar circumstances, then a reasonable jury could conclude that Quigg's sex was a but-for cause of the adverse employment decision. Such evidence would not negate the possibility that a legitimate motive also played a role -- and even that it was a but-for cause -- but doing so is not necessary to establish that a prohibited factor was a but-for cause.
Given the lower causation standard under Price Waterhouse than under McDonnell Douglas, the former should be more favorable to a plaintiff, at least when properly applied by a fact finder. In many cases, however, a plaintiff may be unable to establish causation without resort to the McDonnell Douglas framework. Despite the fuzziness of the concept of a "motivating factor," it is nevertheless clear that it is much easier for a plaintiff to establish a prima facie case under the McDonnell Douglas framework than to establish motivating-factor causation. Even in the absence of sufficient evidence, such as biased statements, drawing a link between a protected characteristic and an adverse employment decision, a plaintiff might be able to prevail nevertheless under the McDonnell Douglas framework by producing evidence that establishes a prima facie case and that undermines the link between the defendant's asserted reason and the adverse employment decision. In other words, the evidence available to a plaintiff often may only be conducive to proving discrimination indirectly under the McDonnell Douglas framework, and not to proving it more directly under the Price Waterhouse framework.
Quigg Redux
In Linda Quigg's case, based on evidence of school board members' biased statements, the Eleventh Circuit concluded that a reasonable jury could find that Quigg's sex was a motivating factor in the defendant's decision not to renew her contract as superintendent. As a result, Quigg could prevail in her disparate treatment claim without having to undermine the defendant's assertion that its decision was based on her job performance, and the burden instead fell on the defendant to establish that it would have taken the same action anyway, even if it had not relied on a prohibited characteristic.As discussed, however, the mere existence of both legitimate and illegitimate motives would not render Quigg's claim inherently unsuitable for analysis under the McDonnell Douglas framework. If, for example, Quigg had produced evidence that a male superintendent was treated more favorably under similar circumstances, then a reasonable jury could conclude that Quigg's sex was a but-for cause of the adverse employment decision. Such evidence would not negate the possibility that a legitimate motive also played a role -- and even that it was a but-for cause -- but doing so is not necessary to establish that a prohibited factor was a but-for cause.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on
how to analyze any particular set of facts.
