In Causation in Context, Professor Leora F. Eisenstadt harshly critiques Burrage v. United States, a case in which the Supreme Court imports some of its troublesome thinking on employment discrimination causation into a criminal law case. I like the article lots because it crosses two substantive areas and explains why causation, a tricky and core concept in both areas, does quite different work in each area. In the process, the article exposes the larger danger of misusing a powerful tool that judges, lawyers and law professors alike use – reasoning by analogy. Professor Eisenstadt implicitly suggests that reasoning by analogy is of little or no use if the court that is reasoning has an insufficient understanding of the underlying areas at issue and fails to recognize what makes the analogy inapt. If a court wants to use an employment discrimination concept in a criminal law area, the court needs to understand why the concept has been used—and whether the concept has been misused—in the employment discrimination area before deploying it in the criminal law area.
In short, the article considers how the Supreme Court in Burrage imported the but-for causation principle – the notion that a factor does not cause a result if the result would have occurred in the absence of the factor – that has been become prevalent in the employment discrimination area into a criminal law case. In the process, a principle used to determine whether intentional discrimination caused an adverse job action is now used in a criminal case to determine whether the use of an illicit drug caused a victim’s death. The article discusses the Court’s mistake in finding a false equivalency between causation in criminal law and causation in employment discrimination law. The false equivalency not only triggered an inappropriate use of an employment discrimination causation standard in the criminal law case; it may trigger a broader assumption that a principle used in one area of the law can be borrowed and used in other areas of the law. That could create problems if courts import concepts from other areas of law into an already complex employment discrimination arena.
Professor Eisenstadt begins her argument with a discussion of the history of the but-for causation standard in employment discrimination law, noting that factual causation has been a major issue in employment discrimination cases at least since the Supreme Court addressed the issue in Price Waterhouse v. Hopkins. The Price Waterhouse Court sought to determine what “because of” meant when multiple factors appeared to cause an adverse job action. The Court’s plurality opinion ultimately determined that in Title VII intentional discrimination cases, but-for causation was not the proper causation standard when multiple causes led to an adverse job action. Rather, the Court instituted a mixed motives standard that allowed recovery if an adverse job action was caused in part by unlawful bias, though the employer could avoid all liability if it could prove it would have made the same decision anyway. Congress resolved the issue in the Civil Rights Act of 1991 by codifying the motivating factor test. That test allows plaintiff to recover if unlawful bias is shown to have motivated the relevant job action, though recovery is limited if the defendant proves it would have made the same decision without use of the illegitimate factor.
Professor Eisenstadt then traces the Court’s installation of but-for causation in two recent employment discrimination mixed-motives cases. In Gross v. FBL Financial Services, the Court decided that but-for causation is required in mixed-motives Age Discrimination in Employment Act cases, resting its decision on the absence of an explicit motivating factor test in the ADEA. Though the Price Waterhouse Court had determined that “because of” in Title VII required a mixed-motives standard, the Gross Court concluded that similar language in the ADEA triggered a but-for causation standard. A few years later, the Court in University of Texas Southwestern Medical Center v. Nassar used the same analysis to require but-for causation in Title VII retaliation cases.
Professor Eisenstadt then discusses Burrage v. United States. The defendant in Burrage was a heroin dealer who faced an enhanced mandatory punishment if his buyer’s death resulted from the use of the heroin the defendant sold him. As the victim had taken multiple drugs, the medical examiner could determine that the heroin use was a contributing factor in the victim’s death, but could not determine that the heroin use was a but-for cause of the death. The jury was instructed that the heroin need only have been a contributing factor in the victim’s death. Relying in part on an analysis of but-for causation in employment discrimination cases, the Court decided that the statute at issue required but-for causation. The defendant prevailed.
Professor Eisenstadt criticizes the Court’s false equivalency of but-for causation in criminal law and employment discrimination law. After analyzing the multiple differences between how causation applies in the different areas of law, Eisenstadt concludes that the purpose of employment discrimination law is so different than the purpose of criminal law that importing an employment discrimination principle into criminal law is inappropriate. She suggests that the false equivalency could lead to the importation of principles from other areas of law into employment discrimination and notes that tort principles have already been imported into employment discrimination law.
She then describes problems that would attend importing criminal law principles, such as mens rea intent levels into employment discrimination law. Though intent is important in each area, intent serves different purposes in the two areas. For example, differing levels of criminal mens rea track differing levels of criminal culpability. That structure does not apply in the employment discrimination area. Similarly, importing criminal law fault principles into employment discrimination law could be very problematic. Though both areas consider fault, fault in criminal law carries a moralistic edge that focuses on the character of the defendant whereas fault in the employment discrimination area merely denotes employer responsibility.
Ultimately, Professor Eisenstadt suggests: “Instead of reflexively borrowing definitional concepts across fields of law, courts deciding employment cases should be focused on the specific goals of the law at issue, the relevant parties’ interests, and the practical implications of importing the concept into employment law.” (p. 41.)
I like this article not just because the subject matter is interesting to me as a criminal law and employment discrimination law professor, but because the article speaks to multiple audiences. It speaks to students who mistakenly think that causation in one context is the same as causation in every context. It speaks to judges who act as if causation is an easily understood concept that can be plugged into multiple areas without considering context. It speaks to professors who know that causation can be chameleon-like and want to see a well-reasoned explanation of the harms that can come from treating causation as a one-size fits all concept. Most of all, I like the article because it helps break down the silos that can be created in the academy. For those who believe that criminal law and employment discrimination law have little to do with one another, this article reminds us that judges may see connections between areas that academicians may not see. If we are to speak to and with judges, we may need to come out of our silos to discuss why the concepts that apply in one area of law should not be lightly transferred to another area of law and to discuss when such transfer is appropriate. This article helps foster this process.
I am most appreciative to have another article to assign to my employment discrimination and criminal law students that will get them thinking about causation and why it is such a tricky issue both in criminal law and in employment discrimination law. I encourage you to read this article.