Although the correct causation standard for various employment discrimination statutes continues to be much debated, the most generous standard for plaintiffs—Title VII’s “motivating factor” rule for status discrimination claims—has not had much effect on the ground. In theory, and without much hyperbole, motivating factor seems to require finding a violation when even a smidgeon of bias is implicated in an adverse employment decision. While such a finding will not necessarily entitle the plaintiff to full remedies—since the employer remains able to limit the employee’s recovery by proving that it would have made the same decision in any event—the defendant will be adjudicated a violator and be subject to meaningful sanctions.
Given this extraordinarily favorable causation structure and substantial evidence that bias continues to manifest in persistent ways in this country, one would expect plaintiffs to be enjoying great success in bringing Title VII status discrimination claims. Perhaps needless to say, that is not the reality.
This Article attempts to explain the failure of the motivating factor revolution. It offers three interacting possibilities: First, motivating factor is such a dramatic departure from traditional causation analysis that courts understandably have a hard time implementing the concept. Second, and blending into the first, is judicial resistance to such wholesale intrusion into employment decision-making, a hostility manifested in a number of ways but most notably in the broader formulations of the “stray-remark” doctrine that have dramatically limited the potential impact of motivating factor liability. Third, plaintiffs’ attorneys have shied away from robustly framing their claims in terms of motivating factor liability because that litigation structure subjects their clients to an employer’s remedy-limiting affirmative defense of “same decision anyway.” Not only does that structure create a tactical problem for many plaintiffs, but it also inevitably generates a conflict of interest between attorney and client: The liability/same decision structure allows juries to reach compromise verdicts and, when they do, deny the plaintiff monetary recovery other than fee awards that typically go to their attorney.