Yearly Archives: 2018

Making Sense of Causation in Mixed Motives Cases

Feb 21, 2018 Martin J. KatzAdd a Comment

To say that the law of causation in mixed motives cases is a mess would be an understatement, as Andrew Verstein highlights in his article, The Jurisprudence of Mixed Motives. Most antidiscrimination laws require causation. That is, these laws proscribe adverse employment actions when they occur “because of” a protected characteristic, such as race or sex. The problem is that there are several types of causation, particularly where multiple motives are involved – which is almost always. Yet, few of those statutes specify what type of causation is required. Other statutes specify what type of causation is required, but with no clear definition (e.g., “motivating factor” causation, referenced in the Civil Rights Act of 1991). To make matters worse, courts and commentators often throw other undefined or ill-defined terms into the mix. And if we were inclined to look at other legal fields, such as tort law or constitutional law, in order to make sense of causation in employment discrimination law, we tend to encounter yet more ill-defined terms.

One might think – or at least hope – that it would be possible to (1) identify the universe of potentially applicable causal standards; (2) clearly define each of those standards (and their relationship to one another); and (3) attach a universally applicable and accepted label to each causal standard. That is, we might imagine a Rosetta Stone that would allow us to clear up the confusion that reigns in the Babel of causation. Such a tool would allow us to describe the law with precision and engage in meaningful (and perhaps even cross-substantive) discussions about the normative merits of any particular causal requirement.

I attempted a project like this in 2006, in an article entitled The Fundamental Incoherence of Title VII: Making Sense of Causation in Disparate Treatment Law. That piece posited a universe of causal concepts based on core philosophic causal terms (necessity and sufficiency), arranged from least restrictive (most plaintiff-friendly) to most restrictive (most defendant-friendly):

Yet that piece had two important limitations. First, it conceptualized causation solely as qualitative. That is, in my work, a cause could be necessary, or sufficient, or some combination of those qualitative concepts. But I had no way to conceptualize one cause as “stronger” than another, or to conceptualize a cause as being “big” or “small” – concepts that are intuitively important, and to which many courts and commentators have referred. Second, and relatedly, without a quantitative component to my analysis, I undertheorized the concept of “minimal causation” (the best definition for “motivating factor” causation). There may be important variations within minimal causation that I failed to capture.

Now, in The Jurisprudence of Mixed Motives, Professor Verstein has developed a model that truly advances the search for a Rosetta Stone for causation. His model posits a quantitative view, in which motives have varying degrees of causal influence in decision-making. With this approach, he is able to depict the causal force of multiple motives on a graph as follows:

His graph depicts a simplified world in which a defendant bases a decision (such as a decision to fire the plaintiff) on two motives: B-Motive, which is proscribed (such as race), and A-Motive, which is not proscribed (such as tardiness). Once the causal force of either motive alone or the two motives combined reaches a value of 1 – i.e., the combined causal force is sufficient – the decision in question (the firing) will occur.

This model allows us to understand the relationships between the traditional quantitative concepts. Professor Verstein prefers other labels for the quadrants in his graph, but it is easy to translate his terms into traditional causal language as follows:

This provides an incredibly useful way of viewing these causal concepts and the relationship between them.

Three important concepts are readily apparent from this graph. First, we can illustrate the concept of “de minimis” causation: the area on the left side of the graph closest to the A-Axis. This concept of “de minimis” causation might explain the “substantial factor” language used by some courts and commentators: “substantial factor” might mean “more than de minimis.” Second, we can see that B-Motive can be “de minimis” even when it is a necessary cause (on the leftmost side of the gray triangle), as well as where it is neither necessary nor sufficient (on the leftmost side of the upper left quadrangle or the leftmost side of the lower left black triangle). This suggests a need to be more specific about other causal requirements if we want to use a “substantial factor” test. Third, we can see that there are actually two types of motivating factor causation. Recall that motivating factor means that B-Motive has some causal force, but is neither necessary nor sufficient. One type of motivating factor causation is depicted in the upper left quadrant and the other is depicted in the lower left black triangle. Given that the adverse employment decision (firing) will occur only in the upper left quadrant, that is the most likely candidate for the meaning of motivating factor causation in most statutes. However, in the lower left black triangle, which likely depicts what Justice O’Connor referred to as “thought crime,” the defendant still engaged in decision-making based on a proscribed criterion (race), which still raises normative issues. (This is why I noted that I undertheorized motivating factor causation in my 2006 piece.)

Next, Professor Verstein introduces the idea of B-Motive “predomination” (where the causal force of B-Motive is greater than that of A-Motive). We can see this on his graph, as follows:

This concept of predomination might explain the “primary factor” language used by some courts and commentators: “primary factor” might mean “B-predomination.”

Professor Verstein then combines these insights into a multi-zone graph that seems truly to define the universe of potential causal concepts:

From there, he goes on to label those concepts, focus on the most commonly used concepts, and compare those concepts across various fields of law – including not only employment discrimination law, but also fields as diverse as constitutional law and tax law. The potential for courts and scholars in one field to learn from those in other fields is exciting and unprecedented. Moreover, this approach lays the groundwork for a clear and fruitful discussion of the normative merits of various causation requirements that is unprecedented. In fact, Professor Verstein indicates that this is his next project. To say that this is an exciting development in the law of causation would be an understatement.

In closing, two notes seem warranted:

First, although I refer to his model as being about causation, Professor Verstein eschews thinking of motives as exerting causal force. He eschews causal language because he (understandably) does not want to take sides in the ongoing debate about the determinism of motives – i.e., whether we have sufficient self-determination to resist the influence of our motives. But for those of us who are more concerned with the law of causation and less concerned with how that law treats self-determination, his model provides an incredibly useful way of thinking about causation in mixed motives cases.

Second, I have some minor quibbles with Professor Verstein’s piece, and how I think he could make it even better, which I address in a forthcoming piece, A Rosetta Stone for Causation. None of those quibbles detracts from the fact that his piece is one of the most exciting and important ones I have seen in this field. I wholeheartedly recommend it.

A Modern Approach to Pay Disparities in the Workplace

Jan 18, 2018 Joseph SeinerAdd a Comment

In her article, Equal Work, Professor Stephanie Bornstein (Florida) does a superb job of providing a fresh approach to the continuing problem of pay discrimination in the workplace on the basis of gender and race. As Professor Bornstein correctly acknowledges, pay discrimination has remained an ongoing problem in our society for decades. Her article makes two extraordinarily useful contributions: first, it undertakes a comprehensive survey of the latest literature on pay discrimination and its causes, and second, it offers solutions that do not require legislative reform to chip away at this pervasive problem.

Early in her article, Professor Bornstein provides a comprehensive review of the existing data on gender and pay discrimination in the United States. This overview does a nice job of bringing together all of the most up-to-date research in this area. Then, Professor Bornstein makes an effort to explain why the pay gap continues to exist in the course of exploring recent research on occupational segregation and income inequality in this country. To this end, Professor Bornstein also addresses the complexities of the law on pay discrimination in the workplace, closely examining Title VII of the Civil Rights Act of 1964 and the Equal Pay Act (EPA), before discussing recent efforts on the state level to resolve these problems, including statutes passed in California, Massachusetts, and Oregon. The paper also correctly recognizes the many efforts to close the race and gender pay gap that have been made over many decades and at all levels — federal, state, and local. While some of these efforts have helped reduce pay disparities at different points in our nation’s history, the gap remains persistent and efforts to fix the problem have stalled in recent years.

Thus, Professor Bornstein provides an exhaustive descriptive review of the research in this area, the most current data, and an analysis of the basis for the problem. For this reason alone, the paper promises to serve as a seminal work in this area that other scholars can look to when examining different aspects of this topic. The greatest contribution of this work, however, is Professor Bornstein’s unique approach to helping to resolve these unfair pay disparities. Professor Bornstein’s proposal focuses on the first, threshold prong of the statutory test under the EPA — that the statute requires equal pay for “equal work.” This analysis distinguishes her scholarship from much of the other literature on this topic, which often focuses more on the possibility of narrowing the employers’ “any factor other than sex” defense in the statute.

In this way, the article suggests a new approach to addressing the pay problem. Noting the difficulty of bringing legislative reform to this area, this article discusses ways of addressing pay discrimination problems through existing legal frameworks. By way of example, the article explores how employers in the union and governmental sectors have found ways to create equal pay systems that do a better job than non-union private sector workplaces of paying minorities and women equally to what they pay white men. Professor Bornstein’s approach plays off these examples, arguing that employers must make broader comparisons between workers when reaching pay determinations. Her approach thus advocates that “every difference between jobs [created by an employer] need not be wage-determinative.” This approach explains how the current narrow interpretation of the law is outdated, and how a more comprehensive approach — which applies a broader framing of what constitutes equal work — is now critical to the modern workplace. The unique strength of this piece, then, is its detailed explanation of how we can work within existing legal structures to better protect women and minorities from pay discrimination. The paper thus avoids some of the practical pitfalls that can befall proposals for broad legislative reform in this area.

It is difficult to overstate the important contribution Professor Bornstein makes here with Equal Work. The vast collection of data on the topic and the exhaustive background information provided are by themselves quite impressive. However, the novel approach to helping fix the problem advocated by Professor Bornstein makes this work an invaluable contribution to the academic literature.