In The Causation Canon, Professor Sandra Sperino performs a superb analysis of the Supreme Court’s evolving analysis of causation standards. The piece carefully synthesizes the decisions in this area, identifying a new canon of statutory interpretation now used by the Court – coined by Professor Sperino as the “Causation Canon.”
The law with respect to causation has always been muddled. In the field of employment discrimination law and worklaw more generally, causation has persistently presented a tremendous burden to claimants in the field. While establishing causation in other areas of the law may often be much more straightforward, showing discriminatory employer intent can present a Herculean task. There are a variety of reasons for the difficulty, including that so much of the critical information in such cases often resides with the employer and can be notoriously difficult to uncover. Personnel files, worker emails, and other critical evidence may not be readily accessible to a worker who has been recently fired, or may be accessed only at substantial cost during discovery. Yet the law requires that causation be established to recover in most workplace cases, particularly with respect to disparate treatment employment discrimination claims.
Professor Sperino’s groundbreaking paper identifies the new way that the Supreme Court has approached statutory interpretation with respect to issues involving causal determinations. As she identifies the Court’s new doctrine, which has evolved over the past decade, “[w]hen a statute uses any language that might relate to factual cause, the Court will assume that Congress meant to require the plaintiff to establish ‘but-for’ cause.” (P.704.) Professor Sperino traces the doctrine back to 2013. Prior to this time, she notes that the Court looked at each statute individually in determining how to interpret factual cause in each matter. Over the past decade, however, the Court has looked at causation differently, assuming that the but-for requirement exists universally across statutes.
Professor Sperino discusses the questionable way the Supreme Court has justified this new canon. Indeed, the Court purports to rely on ancient common law to support its interpretation and application of causal standards when interpreting statutes. Professor Sperino expertly highlights through the examination of numerous cases how such a standard did not previously exist. In particular, she closely explores the Price Waterhouse v. Hopkins and Gross v. FBL Financial Services cases (which both arose in the employment law context) to demonstrate that this doctrine is a new phenomenon. Professor Sperino then turns to Court cases issued in the last decade, most notably the Nassar, Burrage, and Comcast decisions, to highlight the development of the Court’s so-called “Causation Canon.”
The implications for employment discrimination plaintiffs are immediate, given the noted difficulty with establishing causation. Generally, the canon identified by Professor Sperino means that it will typically be even more difficult for victims of discrimination to overcome this hurdle. Of course, Professor Sperino‘s theory means much more than this, and is not limited exclusively to employment matters. Indeed, the Court’s new doctrine, as identified by Professor Sperino, would extend to all federal statutes. Nonetheless, causation is typically the critical determination in most employment discrimination cases. The McDonnell Douglas test, which Professor Sperino has examined extensively in her prior research (see, e.g., McDonnell Douglas: The Most Important Case in Employment Discrimination Law, (Bloomberg)), is still an evidentiary standard of causation with which the courts struggle and offer differing opinions even half a century after the case was first announced.
The genius of this work is the masterful way in which Professor Sperino synthesizes the shortcomings of the Supreme Court’s analysis. Given her extensive expertise in this area, Professor Sperino is uniquely situated to demonstrate how the Court’s announced underpinnings for its standard — more specifically ancient common law – is at odds with the new canon that it purports to develop. As she correctly notes, the “causation canon creates a stand-alone factual standard. In contrast, the common law uses a bundled approach” where in some circumstances it was recognized that “this standard does not work well.” (P. 705.) In those situations, prior to 2013, the law would “adapt[] by changing the subject of the standard, or the party required to prove it.” Id. After the creation of this canon, however, the Court “has made a powerful substantive choice” by favoring the stand-alone approach, and has “magnified this choice by imposing it as the default for factual cause in all federal statutes.” Id.
The identification of the causation canon alone will prove extraordinarily helpful to those researching in this area, and in analyzing any causation questions which are likely to find their way to the courts. Perhaps more importantly, however, the Supreme Court should own the new theory that is has silently developed and not be permitted to quietly rely upon an unsubstantiated examination of past precedent. The causation standard has already created difficulty for plaintiffs in the workplace context. Now, through a clearer understanding of this canon, as identified and detailed by Professor Sperino so well, plaintiffs will have more clarity when litigating in this area. In this way, the paper is far more than theoretical, and provides a valuable and practical resource for employment law advocates.
At the end of the day, The Causation Canon, which is extensively well-researched and wonderfully written, will serve as the new statement of statutory construction issues related to causation. Unfortunately, the Court’s new approach likely creates an even greater hurdle for workplace plaintiffs, who already faced numerous procedural challenges even prior to this new doctrine. As Professor Sperino correctly observes, “[t]he causation canon is still in its infancy . . . it is worth considering whether the Court should abandon it.” (P. 744.)
