Mark Cuban’s Clash With EEOC Official Shows Bias Proof Confusion

An EEOC commissioner’s social media rebuke of billionaire businessman Mark Cuban for his praise of diversity, equity, and inclusion practices sheds light on growing confusion between the standards for determining whether illegal discrimination factored into employment decisions.

Andrea Lucas, a Republican commissioner on the US Equal Employment Opportunity Commission, recently posted on X, formerly known as Twitter, that race or sex simply can’t “be part of the equation.”

Lucas highlighted two ways of proving causation under Title VII of the 1964 Civil Rights Act: “but for” causation and “motivating factor.” The former requires plaintiffs to show that a protected characteristic like race or sex was the central reason for the employment action. The latter doesn’t permit consideration of such characteristics, even if other factors were at play and the employer would have made the same decision in the absence of those characteristics.

According to Lucas, “the plain text of Title VII” requires the motivating factor standard.

Attorneys and academics say that while Lucas’ take is accurate, her post highlights the need for further clarity on both standards.

“There’s loose language in cases that have contributed to confusion about causation law and this tweet to me is a prime example of that,” said D’Andra Shu, an assistant professor of law at South Texas College of Law Houston.

‘Employers Are Afraid’

A recent increase in challenges to corporate diversity programs by groups such as Stephen Miller’s America First Legal and Edward Blum’s American Alliance for Equal Rights has prompted confusion as to whether DEI programs are legally permissible. As a result, companies are seeking clarity around these programs and the standards under which they might be liable.

“Employers are afraid” that hiring a diverse workforce “suggests that a motivating factor in their decision was a person’s race or gender,” said American University Washington College of Law professor Susan D. Carle.

Yet “but-for” remains the primary causation test under other federal anti-bias laws, including Section 1981 of the Civil Rights Act of 1866—as the US Supreme Court made clear in Comcast Corp. v. National Ass’n of African American–Owned Media.

That means critics of DEI programs who have sued companies—including Morgan Stanley and law firm Perkins Coie LLP—on behalf of White workers under Section 1981 will almost certainly have to meet the “but-for” causation standard, attorneys say.

Title VII also doesn’t stop employers from considering each applicant based on their diverse backgrounds, life experiences, and ability to work with people across social differences, Carle said.

Chief Justice John Roberts Jr., who authored the US Supreme Court’s recent decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. curtailing the use of race as a factor in college admissions, noted that “it’s a positive thing to consider the whole person and to understand that some people have different life experiences,” she added.

Evolving Standards

The online standards debate started in late January when Cuban posted on X that “race and gender can be part of the equation” in employment decisions, but that he’s “never hired anyone based exclusively on race, gender, religion.”

Lucas responded that Cuban was “dead wrong on black-letter Title VII law.”

EEOC Chair Charlotte Burrows and fellow Democratic Commissioners Jocelyn Samuels and Kalpana Kotagal followed up with their support for DEI programs on X. Samuels, for instance, wrote that “reducing barriers to equal opportunity is not the same as unfairly putting a thumb on the scale.”

“There’s a lot of confusion out there about DEI, but at least on this point, there shouldn’t be,” Lucas wrote in another post. “The law is clear. To muddy the water on ‘motivating factor’ liability would do the public a disservice.”

Congress adopted the motivating factor standard in the Civil Rights Act of 1991 as an alternative route for liability under Title VII, providing that it’s illegal to consider a protected characteristic as a factor in an employment decision, even if there are other factors involved.

Yet in 2013, the Supreme Court held in University of Texas Southwestern Medical Center v. Nassar that Title VII’s retaliation provisions were governed by the “but-for” standard.

Then in 2020’s Bostock v. Clayton County, which held that Title VII bans employment discrimination on the basis of sexual orientation and gender identity, the Supreme Court expanded “but-for” and narrowed the gap between the two standards.

Justice Neil Gorsuch, who authored the majority opinion, explained that “but for” causation is a “sweeping standard” that doesn’t require the illegal motive to be the sole or even primary reason for the decision, as long as the outcome wouldn’t have been the same without considering the prohibited factor.

Narrowing Gap

While the traditional line has been that “employers are always wanting the but-for and employees are always wanting the motivating factor,” Shu said, there’s been a “big shift in a sense because motivating factor liability didn’t really pan out the way people thought it was going to.” It’s often a “hollow victory” for employees, she said.

Under the Civil Rights Act of 1991, meeting only the motivating factor standard denies a plaintiff the right to damages or reinstatement, hiring, or promotion.

Post-Bostock, the lines aren’t as clearly drawn as they used to be, Shu said.

For example, Marcia McCormick, a labor and employment professor at Saint Louis University School of Law, said a broad application of the “but-for” standard may help workers with intersectional discrimination claims, where bias is based on a combination of multiple protected characteristics.

When it comes to claims of employment discrimination related to DEI programs, Shu said, “the difference between how they would shake out under motivating factor standard versus but-for standard, there’s probably not that much of a gap between the two.”

Some lower courts still haven’t adopted the Bostock interpretation of “but-for,” creating additional confusion, Shu said.

Carle agreed that Bostock has “muddied the water.”

“We’re in a period in which there’s a changing landscape of the law,” she said. “I think we’re in a state of uncertainty” with how these standards will be applied going forward.

James Paretti, a management-side attorney at Littler Mendelson PC, said that while the differences between the standards can become “very esoteric,” cases using the but-for standard “are increasingly rare because I just don’t think that’s how folks are operating.”