Further Musings on Gross and the Cat’s Paw Case (Staub)

Last week, when we first posted (here) about the Supreme Court’s acceptance for the third time now of a cat’s paw case, we noted that the Solicitor General, in her amicus brief, had added the adjective “substantial” to the motivating factor causation standard, transforming it from the illicit motive being a motivating factor to it being a substantial motivating factor. If indeed that is the ultimate definition of motivating factor causation, I wonder if there is really, at least in the minds of some judges, any substantial difference between this causation model and “but-for” causation. I note that former Justice O’Connor in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775 (1989) concluded that a “substantive violation of the statute only occurs when consideration of an illegitimate criterion is the ‘but-for’ cause of an adverse employment action.” Id. 109 S. Ct. at 1797. Justice O’Connor went on to state that “in order to justify shifting the burden on the issue of causation to the defendant, a disparate treatment plaintiff must show by direct evidence that an illegitimate criterion was a substantial factor in the decision.” Id. 109 S. Ct. at 1804 (emphasis supplied).

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