Mt. Healthy, Causation and Affirmative Defenses - Joesph Z. Fleming

• Publication year: 2000

Mt. Healthy, Causation, and Affirmative Defensesby Joseph Z. Fleming^*

I. Causation—The Theory of Everything

In Mt. Healthy City School District Board of Education v. Doyle,¹ the Supreme Court established a rule of causation to distinguish between a result caused by a constitutional violation and one not so caused by establishing "the proper test. . . which likewise protects against invasion of constitutional rights without commanding undesirable consequences not necessary to the assurance of those rights."² Reconciling such inconsistencies is similar to the type of situation that has confounded physicists trying to achieve a unified field theory—a theory capable of describing nature's forces within a single, all-encompassing, coherent framework.³ Physicists since Einstein have sought such a "unified field theory" or a "theory of everything" to fashion the ultimate theory of the universe and to answer questions as to causation and how the universe arose (and to explain the universe from the "big bang" to the end, or the "cosmic implosion").⁴ However, they encountered a major causation problem:

The problem is this: There are two foundational pillars upon which modern physics rests. One is Albert Einstein's general relativity, which provides a theoretical framework for understanding the universe on the largest of scales: stars, galaxies, clusters of galaxies, and beyond to the immense expanse of the universe itself. The other is quantum mechanics, which provides a theoretical framework for

understanding the universe on the smallest of scales: molecules, atoms, and all the way down to subatomic particles like electrons and quarks. Through years of research, physicists have experimentally confirmed to almost unimaginable accuracy virtually all predictions made by each of these theories. But these same theoretical tools inexorably lead to another disturbing conclusion: As they are currently formulated, general relativity and quantum mechanics cannot both be right. The two theories underlying the tremendous progress of physics during the last hundred years—progress that has explained the expansion of the heavens and the fundamental structure of matter—are mutually incompatible.⁵

On a less universal scale, courts have struggled with causation issues that can answer the following questions: (1) whether rights have been violated and, (2) if so, whether the violations are the cause of decisions or should be used to negate, or end, decisions. Just as physicists must try to reconcile inconsistent theories, courts must determine whether various laws have been violated and must preclude various decisions when mixed motives are present—one legitimate and one unlawfully discriminatory—and when both may have caused an unfavorable employment action. This has been a major problem in connection with labor and employment matters, and the resolution of the mixed-motive problem came from the framework established in Mt. Healthy.⁶

In Mt. Healthy the Court held that an employee can be legally terminated if the employer can prove that it would have fired the employee absent the discriminatory motivation.⁷ In that case an untenured teacher contended that but for his participation in an exercise of a First Amendment broadcast over a radio station, the school board would have renewed his contract. The district court held that the teacher was entitled to reinstatement with back pay, and the Sixth Circuit affirmed.⁸ However, the Supreme Court vacated and remanded.⁹ The Supreme Court accepted the district court's finding that the communication was protected by the First and Fourteenth Amendments.¹⁰ However, the fact that the communication might have played a "substantial part" in the board's decision not to renew the teacher's contract was not a constitutional violation justifying remedial action if the board would have reached the same decision anyway.¹¹ The Court vacated and remanded because it was unable to determine how the proper test would have been applied.¹²

While Mt. Healthy implicated the First Amendment insofar as the employee asserted that his exercise of his First Amendment rights caused the discriminatory terminations, the Court, in NLRB v. Transportation Management Corp.,¹³ extended its holding beyond constitutional issues connected with employment matters to traditional labor law issues.¹⁴ The NLRB adopted the theory established in Mt. Healthy in connection with its interpretation of the National Labor Relations Act.¹⁵ The Court approved what is known as the "Wright Line" test, which allows a termination to stand even if the employer was motivated by either a desire to punish the plaintiff or other improper reasons, so long as the employer can show it would have otherwise terminated the employee or reached the same termination decision.¹⁶ Relying on Mt. Healthy, the court stated,

The [NLRB's] allocation of the burden of proof is clearly reasonable in [a mixed-motive] context, for the reason stated in NLRB v. Remington Rand, Inc., a case on which the Board relied when it began taking the position that the burden of persuasion could be shifted. The employer is a wrongdoer; he has acted out of a motive that is declared illegitimate by the statute. It is fair that he bear the risk that the influence of legal and illegal motives cannot be separated, because he knowingly created the risk and because the risk was created not by innocent activity but by his own wrongdoing.

In Mt. Healthy City Board of Education v. Doyle, we found it prudent, albeit in a case implicating the Constitution, to set up an allocation of the burden of proof which the Board heavily relied on and borrowed from in its Wright Line decision. There, we held that the plaintiff had to show that the employer's disapproval of his First Amendment protected expression played a role in the employer's decision to discharge him. If that burden of persuasion were carried, the burden would be on the defendant to show by a preponderance of the evidence that he would have reached the same decision even if, hypothetically, he had not been motivated by a desire to punish

plaintiff for exercising his First Amendment rights. The analogy to Mt. Healthy drawn by the Board was a fair one.¹⁷

The causation analysis in Mt. Healthy has been adopted in other circumstances as well. In Price Waterhouse v. Hopkins,¹⁸ the Supreme Court noted it would follow Mt. Healthy when deciding mixed-motive cases under Title VII:

We have reached a similar conclusion in other contexts where the law announces that a certain characteristic is irrelevant to the allocation of burdens and benefits. In Mt. Healthy City Bd. of Ed. v. Doyle, . . . [w]e . . . held that once the plaintiff had shown that his constitutionally protected speech was a "substantial" or "motivating factor" in the adverse treatment of him by his employer, the employer was obligated to prove "by a preponderance of the evidence that it would have reached the same decision as to [the plaintiff] even in the absence of the protected conduct." A court that finds for a plaintiff under this standard has effectively concluded that an illegitimate motive was a "but-for" cause of the employment decision.¹⁹

The plurality in Price Waterhouse specifically rejected the dissent by Justice Kennedy,²⁰ which Chief Justice Rehnquist and Justice Scalia joined and which attempted to find that analogies to the decisions in Mt. Healthy and Transportation Management Corp. were not appropriate because "these cases were decided in different contexts."²¹ The dissent contended that Mt. Healthy was a First Amendment case and not controlling as to Title VII.²²

The plurality rejected the dissent's argument:

At some point in the proceedings, of course, the District Court must decide whether a particular case involves mixed motives. If the plaintiff fails to satisfy the factfinder that it is more likely than not that a forbidden characteristic played a part in the employment decision, then she may prevail only if she proves, following Burdine, that the employer's stated reason for its decision is pretextual. The dissent need not worry that this evidentiary scheme, if used during a jury trial, will be so impossibly confused and complex as it imagines. Juries long have decided cases in which defendants raised affirmative defenses. The dissent fails, moreover, to explain why the evidentiary scheme that we endorsed over 10 years ago in Mt. Healthy City Bd. of Ed. v. Doyle has not proved unworkable in that context but would be hopelessly complicated in a case brought under federal antidiscrimination statutes.²³

The foregoing type of affirmative defense, based on analysis of the causation concept articulated in Mt. Healthy, was disapproved by Congress in the Civil Rights Act of 1991, which was Congress's reaction to the Court's decisions in Price Waterhouse and other cases. While some maintain that Price Waterhouse heightened the employee's burden and made it more difficult for the employer to rebut a plaintiff's prima facie case and that the Civil Rights Act of 1991 "adopted the plurality test,"²⁴ the Civil Rights Act of 1991 plainly states that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."²⁵

Other approaches to legal causation and analysis have used the mixed-motive approach²⁶ and the causation type of analysis from Mt. Healthy.²⁷

The Supreme Court seems to have created a concept in Mt. Healthy that can be applied in a way that federalizes, or constitutionalizes, causation issues in the same fashion as in certain other areas of the law.²⁸

As noted, while the causation test in Mt. Healthy was adopted by the Court in Price Waterhouse, it has been changed by congressional amendment' of Title VII, and the change appears to be a restriction on the use of...