Claims for discrimination based on race, color, religion, sex, national origin, age or disability must meet the relevant standard of causation in order to prevail. The problem in these discrimination lawsuits is that different anti-discrimination statutes have different standards of causation. Some are embedded in the statute or applied by the courts. In many instances, the courts have been divided and evolving about which standard to apply. This means that discrimination lawsuits based on very similar facts may lead to very different outcomes, depending on the statute and court involved. For this reason alone, it is critical to have an employment attorney with a great deal of experience in anti-discrimination law and practice. At Kilgore & Kilgore, we have exactly the type of experience you need on your side during the difficult and complex process of pursuing a discrimination claim. If you have a discrimination situation, call us at (214) 969-9099 for a free review of the facts of your case with an employment law attorney.

To illustrate how these divergent standards of causation can play out, imagine the following scenario. Sheila, Dan, Gwen and Kevin are all regional sales managers for the same company. Sheila is a 38-year-old white female who has been with the company for 12 years. She has an excellent record, other than having lost one major account during the past year. Dan is a 50-year-old white male who has been with the company for 20 years. He also has a stellar performance record, other than having lost one major account the previous year. Gwen is a 35-year-old black woman who has been with the company for five years. Her region was the highest in sales the previous year. Kevin is a 35-year-old Hispanic male who has been with the company for five years. His region’s sales came in just below the other three regions last year. Dwayne is the 60-year-old founder of the company. He is in the process of selecting a new VP of Sales. To everyone’s surprise he chooses Kevin.

Afterwards, solid evidence comes to light that Dwayne passed over Sheila because he wants a male VP of Sales and she lost a major account. There is also strong evidence that he passed over Dan because he is older and he also lost a major account. There is also good evidence that he passed over Gwen because she previously filed a discrimination claim against the company, which was settled, and he knows she’s been speaking with a competitor about joining their company.

Sheila files a sex discrimination lawsuit under Title VII of the Civil Rights Act of 1964 (Title VII). Dan files an age discrimination lawsuit under the Age Discrimination in Employment Act of 1967 (ADEA). Gwen files an employment retaliation lawsuit under Title VII. On the face of it, each of the three jilted employees appears to have an equally good claim against the company. But, Sheila is the only one who wins her lawsuit.

Why did Sheila win her lawsuit? Because she had the most advantageous standard of causation, called the motivating factor standard, applied in her case. Gwen and Dan had a stricter standard, called the but for standard, applied in their cases. If these claims could have been brought in Texas state court instead of in federal court, the Texas Commission on Human Rights Act, as opposed to Title VII, would apply. The result would have been different in that the standard in the Texas Pattern Jury Charge for age discrimination, Dan’s case, would have been the motivating factor standard.

Every federal and Texas state statute under which a discrimination claim can be brought has its own motivating factor standard or but for standard of causation. Federal and state standards of causation differ. Using the motivating factor standard, even if an employer has a legitimate reason not to promote an employee, that employee can prevail if it is shown that a discriminatory reason was a motivating factor in the decision. Alternatively, under the but for standard, the discriminatory motive must have had a determinative influence on the employer’s decision. This means the employer would have promoted the employee but for the employee being a member of a protected class.

Under the current language of Title VII, Sheila’s sexual discrimination claim was determined based on whether her status as a female had been a motivating factor in Dwayne’s decision not to promote her. Because this was the case, even though Dwayne also had a valid reason, the fact that Sheila lost a major account, she still won the case.

In contrast, even though Gwen’s lawsuit was also brought under Title VII, the but for standard was applied to her case. This is because in the 2013 case of University of Texas Southwestern Medical Center v. Nassar, the U.S. Supreme Court determined that the section of Title VII covering employment retaliation claims requires a but for standard of causation, rather than the motivating factor standard applied to direct discrimination claims under Title VII. The Supreme Court’s decision in Nassar overturned a ruling by the U.S. Court of Appeals for the Fifth Circuit, which includes Texas, which had applied the motivating factor test to a retaliation claim. So Gwen’s claim was judged base on whether she would have received the promotion but for the illegal motive of retaliation for her previous discrimination complaint. Since Dwayne had another motive for not promoting Gwen, that he believed she may jump ship to join a competitor, she was not able to meet the but for standard of causation.

In the 2009 case of Gross v. FBL Financial Services, the U.S. Supreme Court also determined that age discrimination claims under the ADEA must meet the but for standard. Therefore, Dan’s claim for age discrimination also failed, because even if age was not a factor in Dwayne’s decision, then Dan still wouldn’t have received the promotion due to his failure to hold a major account. So fair or not, age discrimination and retaliation claims must meet a higher standard of causation than claims based on race, color religion, sex or national origin. However, age discrimination cases brought in Texas state court under the Texas Commission Human Rights Act are tried under the motivating factor standard.

There are still some statutes, such as the Americans with Disabilities Act (ADA), where federal courts are split as to which standard of causation to apply. The U.S. Supreme Court has yet to resolve the issue. As of this writing, the U.S. Court of Appeals for the Fifth Circuit still applies the motivating factor standard to ADA claims. Several other circuits have shifted to the but for standard in light of the recent U.S. Supreme Court cases. The issue is similarly unresolved in cases involving the Family Medical Leave Act.

For anyone wishing to bring a discrimination claim, it is critical that his or her employment law attorney be well-qualified and experienced in both of the applicable standards of causation for each statute. It is important to understand how the various courts have applied and interpreted these standards, because the standard and how it is applied often makes or breaks a discrimination claim. Kilgore & Kilgore employment attorneys have direct experience in these matters that can help you win your lawsuit. To learn more about employment discrimination, click here Employment Discrimination Law. For a free review of the facts of your case with an employment law attorney, use this link to contact Kilgore & Kilgore through our website Contact Us. Or you can call us at (214) 969-9099 and leave a message.

#     #     #