Monday, January 22, 2018

Milsap v. City of Chicago: Does but-for causation preclude the possibility of mixed motives?

In Milsap v. City of Chicago, No. 16-cv-4202 (N.D. Ill. Jan. 19, 2018), Judge Robert Blakey made the common mistake of confusing the level of causation -- but-for or motivating factor -- with the number of motives for an alleged action. 

Darrell Milsap alleged that he was fired because of his disability and also because he did not continue to lie about who was driving when he was in an accident while on a mail run with a coworker. Initially, Blakey noted that the Seventh Circuit had required a plaintiff alleging a violation of the Americans with Disabilities Act to establish but-for causation. Because Milsap had alleged that his termination was motivated by both his disability and his failure to lie about the accident, Blakey concluded therefore that Milsap could not establish but-for causation and dismissed his ADA claim.

Contrary to Blakey's belief, a plaintiff alleging disability discrimination can establish that disability was a but-for cause of a challenged action even if other actions played a role, and even if there were other but-for causes. If, for example, an employer fired a disabled employee who refused to comply with a request to lie, but would not have fired a non-disabled employee who refused to comply with a request to lie, then disability was a but-for cause. It's also possible that the same employer would not have fired a disabled employee who complied with a request to lie. Under such circumstances, the challenged action had two but-for causes. In Milsap's case, then, the mere acknowledgement that disability was not the sole reason for the challenged action did not preclude the possibility that disability was nonetheless a but-for cause.

So what's the significance of requiring but-for causation? 

Here's where the term "mixed motive" comes into play. If someone can show that race was a "motivating factor" for an adverse decision, then under Title VII of the Civil Rights Act of 1964, he can request a mixed-motive jury instruction. This instruction requires that the employer prove that it would have taken the same action even if the plaintiff had been of a different race. A mixed-motive instruction is beneficial to the plaintiff -- at least in theory -- because instead of the plaintiff having to show that race was a but-for cause, the employer has to show that race was not a but-for cause. By contrast, under the ADA, if a plaintiff must show that disability was a but-for cause and not merely a motivating factor -- as Blakey assumed -- then a mixed-motive instruction would be meaningless. Once a plaintiff establishes that a protected characteristic was a but-for cause, it obviously is not possible for the employer to show that the characteristic was not a but-for cause.

The term "mixed motive" is essentially a misnomer. Even if a plaintiff has requested the instruction, he has not necessarily conceded that there were nondiscriminatory motives. And even if he is required to establish but-for causation, that does not mean that there could not have been both discriminatory and nondiscriminatory motives. 

If this discussion has been up your alley, then check out this previous post about a related issue -- the common practice of drawing a false dichotomy between mixed-motive claims and single-motive claims.

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.