The Gross Confusion Deep in the Heart of <i>Univ. Of Texas S.W. Med. Center v. Nassar</i>

Abstract

This essay addresses a fundamental issue underlying the Supreme Court’s consideration of Univ. of Texas S.W. Med. Center v. Nassar, namely the parameters of the factual causation standard applicable in disparate treatment cases. This essay also addresses a previously unrecognized area of agreement between the plurality and dissent in Price Waterhouse v. Hopkins that can resolve the factual causation issue underlying Nassar. The Court’s most recent pronouncement on this issue, in Gross v. FBL Financial Services, has led to confusion as defendants and courts have interpreted Gross to require sole factual causation for the plaintiff to prevail. Yet, sole causation is inherently absurd as every occurrence has a virtually infinite number of factual causes. Nassar provides the Court with a golden opportunity to eliminate the causal confusion that followed Gross and replace it with causal coherence. To do so, this essay argues, the Court should explicitly adopt the unrecognized factual causation standard from Price Waterhouse: that but-for causation in the disparate treatment context is established when the employer’s consideration of a protected trait was a necessary element of the set of factors that caused the decision.