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Legal Test for Other Job Bias Claims Clarified in LGBT Decision

June 16, 2020, 10:00 AM

The U.S. Supreme Court’s landmark ruling that federal law prohibits discrimination against LGBT workers could also help workers suing for age and race bias.

The high court clarified a legal test for proving discrimination that requires workers to show they wouldn’t have been fired or suffered some other adverse job action without their employer’s bias. Some courts have misapplied that standard—known as “but-for causation”—by treating it as a high bar and incorrectly requiring that it be the sole cause for the alleged discrimination, some scholars said.

In the LGBT workers decision, the Supreme Court made clear that but-for causation “can be a sweeping standard,” that events often have “multiple but-for causes,” and that a worker’s race, age, or other protected category need not be the primary factor that caused an adverse employment action. The discussion came in a 6-3 ruling that Title VII of the 1964 Civil Rights Act’s prohibition against sex bias includes sexual orientation and gender identity.

Supreme Court rulings earlier this year cemented its view that but-for causation is the default standard for proving workplace bias, without fleshing out what that test requires. The court’s decision Monday provides much-needed clarity, said Katie Eyer, a discrimination law professor at Rutgers University who co-authored a brief supporting the LGBT workers.

The ruling “really should put to bed any lingering doubts about what’s demanded under the but-for causation standard,” said Eyer.

That default standard is used for retaliation claims under Title VII, claims under the Age Discrimination in Employment Act, and race bias claims under Section 1981 of the 1866 Civil Rights Act. The court likely will continue going law by law to decide whether it applies to the Americans with Disabilities Act, the Family and Medical Leave Act, and the Rehabilitation Act, legal scholars said.

‘Enough to Trigger the Law’

Justice Neil Gorsuch’s majority opinion acknowledged that Congress allowed workers to meet a less stringent standard in Title VII discrimination cases by showing that a protected trait was one of several motivating factors leading to an adverse action.

However, he focused on but-for causation in the context of explaining why Title VII’s prohibition on discrimination “because of sex” includes bias against LGBT workers. “Because of sex” is proved through the but-for causation test, he said.

Title VII doesn’t permit discrimination just because it’s based on multiple factors rather than a single cause, according to the ruling. Nor does the law state that a worker’s sex, age, or other protected category must be the main cause of the allegedly biased action, the court said.

Enforcing a workplace policy to fire female Yankees fans “is a firing ‘because of sex’ if the employer would have tolerated the same allegiance in a male employee,” Gorsuch wrote.

Gorsuch used his discussion of but-for causation as a rhetorical device to cut through the entanglements between sex discrimination and bias against LGBT workers if the court had ruled against the workers, said Sandra Sperino, a University of Cincinnati law professor who’s written extensively on discrimination law and causation.

Even Justice Samuel Alito, who dissented against Title VII covering sexual orientation and gender identity, said that some LGBT bias cases would still go forward on a gender-stereotyping theory under his view of the law, Sperino pointed out.

Plaintiffs’ attorneys will surely cite passages of Gorsuch’s majority opinion in district court proceedings, said Michael Foreman, a law professor and director of Penn State University’s Civil Rights Appellate Clinic.

“It’s a landmark decision on gender identity and gay rights,” Foreman said. “It’s also extremely significant on causation standards.”

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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