Monday, July 11, 2016

Walsh v. N.Y.C. Hous. Auth.: Mixing up McDonnell Douglas & Price Waterhouse

In Walsh v. New York City Housing Authority, No. 14-181-cv (2d Cir. July 7, 2016), the Second Circuit held, in a split decision, that Rita Walsh had presented sufficient evidence for a reasonable factfinder to conclude that the defendant's refusal to hire her for a bricklayer position was motivated in part by her sex. Ultimately, I don't disagree that Walsh's evidence was sufficient for her to survive summary judgment, but I think the majority was mistaken in applying the McDonnell Douglas, rather than the Price Waterhouse, framework.

As I discussed in an earlier post, a plaintiff prevails under the McDonnell Douglas framework by showing that the defendant's asserted reason for the challenged adverse employment decision was a pretext for discrimination. Although this does not require showing that the employer's asserted reason played no role, it nonetheless requires showing that the employer's asserted reason was not enough by itself to have produced the challenged action and, therefore, there must have been another unstated reason, i.e., prohibited bias. Accordingly, if a plaintiff prevails under McDonnell Douglas, she has established that sex or another prohibited characteristic was a but-for cause of the adverse employment decision. In other words, the employer would not have made the same decision in the absence of discriminatory bias by relying solely on its asserted nondiscriminatory reasons.

By contrast, under the Price Waterhouse framework, a plaintiff prevails by drawing a link between discriminatory bias and the challenged action, such as through biased statements or a facially discriminatory policy. The plaintiff does not negate the possibility that the employer would have taken the same action even in the absence of prohibited bias, which the employer may try to establish as an affirmative defense.

In Walsh, the defendant asserted that it did not hire the plaintiff to be a bricklayer because, as she admitted during her interview, she had virtually no bricklaying experience. In concluding that the plaintiff had established that sex was a motivating factor in the defendant's decision not to hire her, the majority cited, among other things, evidence that the defendant had not employed any female bricklayers and evidence that the plaintiff was arguably better qualified than some male candidates because she had more tile work experience. Thus, the majority never tackled the question of what role, if any, the plaintiff's lack of bricklaying experience played in the defendant's decision not to hire her. For all intents and purposes, the majority analyzed Walsh's claim under Price Waterhouse, even though it never even cited that case.

A natural response to the majority's misstep might be "no harm, no foul," but I think that misses the bigger picture. In many, if not most, EEO cases, an employee cannot prevail unless he or she shows that a prohibited characteristic was a but-for cause of the challenged employment decision. This is so for all claims under the Age Discrimination in Employment Act, for all Title VII retaliation claims, and probably for all claims under the Americans with Disabilities Act or the Genetic Information Nondiscrimination Act. A plaintiff can prevail by establishing motivating-factor causation only if she is bringing a claim under the substantive antidiscrimination provision of Title VII (i.e., discrimination based on race, color, sex, national origin, or religion). Thus, if McDonnell Douglas is construed as merely establishing motivating-factor causation, then many plaintiffs would not be able to rely on that framework. For instance, in Foster v. University of Maryland - Eastern Shore, 787 F.3d 243 (4th Cir. 2015), the Fourth Circuit recently concluded that a plaintiff alleging retaliation can rely on the McDonnell Douglas framework, because that framework establishes but-for causation. Given Walsh, however, a plaintiff bringing a retaliation claim in the Second Circuit might not fare so well. 

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.