As widely reported in its recent EEOC v. Abercrombie & Fitch Stores, Inc. decision, the United States Supreme Court held that employers cannot lawfully refuse to hire an applicant if the decision was motivated by the employer’s unwillingness to provide the applicant with an accommodation the applicant needs for religious reasons.
However, in so holding, the Court clarified the causation standard in Title VII discrimination cases such that the more lenient “motivating factor” jury instruction – as opposed to the oft used “because of” instruction – likely will be used going forward.
By way of example, in writing for the nearly unanimous Court, Justice Scalia noted that Title VII’s disparate-treatment provision prohibits employers from “(1) ‘fail[ing] . . . to hire’ an applicant (2) ‘because of’ (3) ‘such individual’s . . . religion’ (which includes his religious practice).” Since the parties conceded that the plaintiff was not hired and that the wearing of her headscarf was a religious practice, the dispute centered on whether the plaintiff was not hired “because of” the religious practice.
Justice Scalia then examined what the phrase “because of” meant in this context and noted that it typically implies a “but for” causation standard. However, turning to the text of Title VII, Scalia recognized Title VII had relaxed this standard to “prohibit even making a protected characteristic a ‘motivating factor’ in an employment decision.” As such, the Court answered definitively the question and held the proper causation standard is that of a “motivating factor”.
The Court’s ruling is critical because ever since the passage of the Civil Rights Act of 1991, which added the “motivating factor” language to Title VII, courts have struggled to reconcile this standard with the more-traditional “but for” causation standard used previously. Prior to its Abercrombie decision, in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the Court recognized that direct evidence was not necessary to obtain a mixed-motive jury instruction in light of the changes to Title VII made by the 1991 Act. Then two years ago, in University of Texas Southwestern Medical Center. v. Nassar, 133 S. Ct. 2517, 2534 (2013), the Court held that a “but for” causation standard applied to claims arising under Title VII’s anti-retaliation provision as that provision was not impacted by the 1991 Act. Foreshadowing the language used in Abercrombie, in dicta, the Court in Nassar noted that “but for” causation was not the standard for status-based discrimination claims under Title VII.
However, even after these key Supreme Court cases, other courts continued to grapple with whether a particular case was a “pretext” case or a “mixed-motive (i.e., motivating factor)” case. To illustrate, the Fifth Circuit pattern jury charge contains a lengthy discussion on the circumstances under which a “but for” or “motivating factor” jury question may be used, ultimately drawing a distinction between “pretext” claims plead under Section 2000e-2(a) of Title VII which use a “but for” standard and “mixed-motive” claims plead under Section 2000e-2(m) using a “motivating factor” standard. In light of the Court’s decision in Abercrombie, these distinctions may no longer be relevant.
Going forward, it is anticipated that plaintiffs and their counsel will insist that the “motivating factor” is the only standard that applies and will seek a jury instruction based on this standard. Further, employers will now be forced to establish that the protected characteristic was not in any way a motivating factor or alternatively, that the employer would have taken the same action regardless of the impermissible motivating factor, thereby taking advantage of the affirmative defense set forth in Section 2000e-5(g)(2)(B) of Title VII. If an employer is successful in establishing this defense, the remedies available to the plaintiff are limited.
Finally, the Supreme Court’s language serves to bring the federal standard in line with the standard used in some states including Texas. For example, the Texas Labor Code has long held that an unlawful employment practice (i.e., discrimination) is established where the plaintiff demonstrates that the protected characteristic was a “motivating factor” for the employment practice.
In sum, the current United States Supreme Court is generally thought to be a business-friendly venue. Yet, in its zeal to faithfully follow the text of the laws passed by Congress, the Court has actually lessened the burden on would-be plaintiffs and made it easier for them to obtain a more lenient jury instruction and thus increase the likelihood of a favorable verdict.