Naumovski v. Norris: The McDonnell Douglas Framework and But-for Causation

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In Naumovski v. Norris, 18-2663 (Aug. 12, 2019), the Second Circuit held that a plaintiff bringing a section 1983 claim alleging unconstitutional sex discrimination is required to establish that sex was a but-for cause, not merely a motivating factor, of the the challenged action. The court explained that, as under Title VII of the Civil Rights Act of 1964, a section 1983 plaintiff can rely on the McDonnell Douglas framework to establish but-for causation. So far, so good. Where the court goes wrong is in not recognizing that establishing pretext under the McDonnell Douglas necessarily means that a plaintiff has established but-for causation.

The court explained:

To establish "pretext" under Title VII, a plaintiff need only establish "that discrimination played a role in an adverse employment decision." In other words, a Title VII plaintiff need only prove that the employer's stated non-discriminatory reason was not the exclusive reason for the adverse employment action. By contrast, to establish "pretext" under § 1983, a plaintiff must establish that the employer's stated reason would not, alone, constitute a sufficient basis for pursuing an adverse action. In other words, a § 1983 plaintiff must establish that the employer's stated non-discriminatory reason is either false or inadequate.

Under the McDonnell Douglas framework, as recognized by the Second Circuit, the focus is on whether there is sufficient evidence to show that the employer's asserted reason is a pretext for unlawful discrimination. The term "pretext" is often characterized as meaning that the employer's asserted reason is a lie, but that is not really accurate. Suppose an African American employee and a white employee get into a fight and only the African American employee is fired. The employer asserts that the African American employee was fired for getting into a fight. But what about the white employee who wasn't fired? Does that mean that the African American employee was not fired for being in a fight? Of course not, and the fact that he was not fired until he got into a fight is evidence that the employer did not lie about firing the employee for his misconduct. However, what about the white employee -- why wasn't he fired? If the employer can't explain why it didn't fire a white employee for misconduct that supposedly justified firing an African American employee, then the evidence would show not only that the African American employee was fired for being black but also that but-for his race he would not have been fired.

The Second Circuit states that pretext can be established under Title VII by evidence that race or another protected factor was not the exclusive factor, but under section 1983 the evidence must also show that the reason is false or inadequate.

This characterization misunderstands the nature of the McDonnell Douglas framework. Since the focus is on weakening the employer's asserted reason, there is no basis for inferring that discrimination also played a role unless the employer's reason has been weakened to the point that there must have been some other reason. If there must be some other reason, then that reason must have been a but-for cause. To be sure, a plaintiff can establish that race was a motivating factor without showing that it was a but-for cause. For example, an African American plaintiff who was fired after getting into a fight with a white employee might point to his supervisor's racist comments. That evidence, however, would tend to show that he was fired for being black, but it would do little, if anything, to show that he was not fired for getting into a fight. Thus, such evidence would not support a finding of "pretext."

While the court's error was highly technical, it could significantly limit plaintiffs' success in bringing discrimination claims. Most claims, even under Title VII, rely on the McDonnell Douglas framework. If a plaintiff can rely on the McDonnell Douglas framework and show that race was a motivating factor but not a but-for cause -- as the Second Circuit would have it -- the employer would have the chance to show it would have taken the same action even in the absence of discrimination. If it can do so, then the plaintiff gets almost nothing -- pretty much only attorney's fees. Juries may be tempted to split the baby, so this would not be an unlikely scenario.

I can't attribute nefarious motives to Judge Cabranes and the other judges on the Naumovski panel, but the decision is a stark illustration that causation standards matter. Unfortunately, rather than providing clarity, courts are all too often making serious mistakes that compound the confusion about these issues.

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.