The Emerging Statutory Proximate Cause Doctrine

• Jurisdiction: United States,Federal
• Citation: Vol. 99
• Publication year: 2021

99 Nebraska L. Rev. 285. The Emerging Statutory Proximate Cause Doctrine

The Emerging Statutory Proximate Cause Doctrine

Sandra F. Sperino ^[*]

TABLE OF CONTENTS

I. Introduction .......................................... 285

II. Causation Generally .................................. 288

III. Factual Causation in Discrimination Law .............. 293

IV. Proximate Cause and Staub ........................... 297
A. Staub Generally ................................... 298
B. Proximate Cause Problems in Staub ............... 300

V. The Current Proximate Cause Muddle ................. 305
A. Generic Cause ..................................... 306
B. Proximate Cause Is Factual Cause ................. 307
C. A Separate Concept ............................... 309
D. Inconsistent Outcomes ............................ 311

VI. Unprincipled Proximate Cause ........................ 313
A. Proximate Cause Without a Source ................ 314
B. Separation of Powers .............................. 318
C. First Principles: Substance and Procedure ......... 320

VII. A Path Forward ...................................... 324

VIII. Conclusion ............................................ 329

I. INTRODUCTION

The year 2011 marked the birth of a new idea. The United States Supreme Court decided Staub v. Proctor Hospital and for the first time invoked common law proximate cause in the context of federal employment discrimination law. ^[1] It is rare in jurisprudence to be pre-

1

sent at the birth of an idea and then see that idea develop over its first decade. This Article charts the emerging proximate cause doctrine from its early days as a baby doctrine. Now, the doctrine is pre-adolescent, with all of the changes and turmoil that phase entails.

Charting the first decade of this new doctrine is important because factual cause doctrine is a central battleground of discrimination jurisprudence. In a string of cases starting in 2009, the Supreme Court tightened the factual cause standard for some discrimination and retaliation claims. ^[2] The majority opinion in Bostock v. Clayton County relied heavily on a factual cause analysis when deciding that Title VII prohibits discrimination because of sexual orientation and gender identity. ^[3] When the Supreme Court first invoked proximate (legal) cause in 2011, it was unclear how proximate cause jurisprudence would develop in discrimination cases and whether proximate cause would become a prominent element in discrimination cases. This Article reviews all of the discrimination cases invoking proximate cause over the last decade and exposes the chaotic, emerging statutory proximate cause doctrine.

This emerging proximate cause doctrine has several important features. First, courts have not settled on a fixed meaning for proximate cause in discrimination cases. Some judges appear to invoke the words "proximate cause" as a general reference to causation without any specific legal meaning. ^[4] Other judges appear to confuse the concept of proximate cause with the separate concept of factual cause. Frequently, federal judges recite that proximate cause requires a plaintiff to prove that a supervisor's animus was the motivating factor in Title VII discrimination cases or was the "but for" cause in Title VII retaliation or Age Discrimination in Employment Act (ADEA) cases. ^[5] Still, other cases appear to recognize proximate cause as a separate element that must be proven in a discrimination case. ^[6]

Second, when courts apply the concept of "proximate cause" in employment discrimination doctrine, the results are inconsistent. Cases with very similar facts often have different outcomes. Strangely, the jurist who introduced the phrase "cat's paw" into discrimination juris-

2

prudence later apologized for doing so and predicted future chaos in proximate cause doctrine. Judge Posner called the cat's paw concept a "judicial attractive nuisance." ^[7] He also lamented how confused the courts were likely to be when applying proximate cause in cat's paw analysis. He noted that while proximate cause "has been a part of the judicial vocabulary for the last 150 years, . . . its meaning has never become clear." ^[8] He also lamented that "philosophical conundra such as 'causation' present unnecessary challenges to understanding" how discrimination happens. ^[9]

Most importantly, the discrimination proximate cause doctrine is unmoored from both tort law and the discrimination statutes. It appears that tort law played almost no role in employment discrimination proximate cause jurisprudence over the past decade. Nor do the courts explicitly rely on the text or policies of the discrimination statutes when crafting proximate cause doctrine.

Given the unprincipled nature of the emerging proximate cause doctrine and its inconsistency, courts should jettison the concept of proximate cause from discrimination law. However, in doing so, they should retain a central insight from Staub. Strangely, Staub's use of proximate cause has caused the courts to more fully interrogate the role of factual cause in discrimination. While courts should abolish proximate cause in this context, they should retain the core of Staub: the idea that plaintiffs can establish discrimination when a decision is improperly tainted by a protected trait.

Part II of this Article begins by grounding readers in the tort concepts of factual cause and proximate (or legal) cause. Part III examines the language of the federal discrimination statutes and how courts molded factual cause doctrines under those statutes. Part IV explores the Supreme Court opinion in Staub in depth, highlighting how the case created the current chaos in proximate cause jurisprudence. Part V summarizes a decade of case law relating to proximate cause, showing how appellate and trial courts do not define it in the same way; some courts see it as a general causation principle, others view it as synonymous with factual cause, and still others indicate there is a separate proximate cause doctrine. It also discusses how courts inconsistently apply proximate cause to similar fact scenarios. Part VI demonstrates that tort proximate cause is performing almost no work in the jurisprudence. Nor do courts rely on the text or policies of the discrimination statutes in developing the doctrine. Despite all of these problems, Part VII argues that courts' struggle with the proximate cause concept over the past decade has helped them to under-

3

stand factual cause more deeply. While jettisoning proximate cause, courts should retain the central insights about factual cause.

II. CAUSATION GENERALLY

Common law proximate cause includes two different kinds of issues: cause in fact and legal or proximate cause. ^[10] "Conduct is a factual cause of harm when the harm would not have occurred absent the conduct." ^[11] Even if a party is the factual cause of harm, that party may ultimately not be liable for the harm caused because proximate cause principles may limit liability.

Proximate cause does not have one fixed meaning. ^[12] Instead, it is an umbrella term that can encapsulate many different concepts, including when intervening actions will cut off liability, ^[13] whether a tort victim is foreseeable, ^[14] the scope of risk of the defendant's actions, ^[15] and policy concerns. ^[16] In some iterations, courts do not express a spe-

4

cific goal for proximate cause; instead, they describe it generally as being concerned with line drawing, determining when, as a matter of policy, defendants should not be liable even though their actions caused the injury in question. ^[17] In discussing proximate cause, leading torts commentators indicate that "[t]here is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion." ^[18]

Within the past decade, the Supreme Court has applied proximate cause doctrine in a number of statutory contexts. ^[19] The most consistent principle to be derived from these cases is that the Supreme Court's proximate cause doctrine lacks consistency. In case after case, the Court chooses among varying iterations of proximate cause without explicitly referencing a decision-making process. However, the version of proximate cause the Justices select is particularly important in statutory cases because some of the iterations will allow claims to proceed and others will not.

In Bank of America Corp. v. City of Miami, the Court explicitly rejected a proximate cause test based solely on foreseeability. ^[20] However, the Court also declined to define proximate cause in detail, noting that it is tied to the goals of the underlying statute, requires a sufficiently close connection between the conduct prohibited by the statute and the alleged injury, and looks at what is administratively possible and convenient. ^[21] At other times, the Court has listed fore-

5

seeability as a primary touchstone of proximate cause. ^[22] The Court noted, "A requirement of...