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Supreme Court reaffirms importance of “but-for” analysis in certain kinds of discrimination claims against private employers

An on-going issue in litigation is frequently the standard of causation and whether a plaintiff’s allegations and evidence are established to meet it. One of the more strict standards is the “but-for” test, meaning a plaintiff must show that the adverse employment action (such as termination or refusal to hire) would not have occurred “but for” their membership in a protected class. One of the least strict standards requires the plaintiff to prove only that their membership in a protected class was “a motivating factor” in the decision.

Two recent Supreme Court decisions reinforced the role of “but-for” analysis in at least certain kinds of cases.

First in  Babb v. Wilkie, the Supreme Court held that governmental employers do not enjoy the protection of “but for” analysis in age discrimination claims, even though private employers have and continue to be able to assert the need for “but for” proof in age discrimination cases.

We are not persuaded by the argument that it is anomalous to hold the Federal Government to a stricter standard than private employers or state and local governments. That is what the statutory language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily done so. 

Second in Comcast Corp. v. National Association of African American-Owned Mediaa unanimous Supreme Court held that a plaintiff asserting a sec. 1981 claim against a non-governmental defendant must meet the stricter “but-for” test, rather than the less strict “motivating factor” test.

Readers are reminded that the “motivating factor” test is the applicable test in some types of claims. As the Supreme Court explained in Comcast, the issue depends upon the specific statute, its language and its legislative history, as well as the extent of relief sought on the claim asserted.