Page

INTRODUCTION AND STATEMENT OF INTEREST.. 1

A. Under Gross, Courts Must Apply A But-For Causation Standard — Not A Sole-Causation Standard — To Private-Sector ADEA Claims. 2

B. The Panel’s Reasoning Does Not Support A Contrary Result. 8

CONCLUSION.. 10

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ADDENDUM

TABLE OF AUTHORITIES

Page(s)

Cases

Bostock v. Clayton Cnty.,

..... 140 S. Ct. 1731 (2020)...................................................... 8, 9, 10

Burrage v. United States,

..... 571 U.S. 204 (2014).............................................................. passim

Carson v. Lake Cnty.,

..... 865 F.3d 526 (7th Cir. 2017)...................................................... 7

Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media,

..... 140 S. Ct. 1009 (2020)................................................................. 3

Cooley v. Carmike Cinemas, Inc.,

..... 25 F.3d 1325 (6th Cir. 1994)...................................................... 5

EMW Women’s Surgical Ctr., P.S.C. v. Friedlander,

..... 978 F.3d 418 (6th Cir. 2020).................................................... 10

Farley v. Nationwide Mut. Ins. Co.,

..... 197 F.3d 1322 (11th Cir. 1999).................................................. 7

Geiger v. Tower Auto.,

..... 579 F.3d 614 (6th Cir. 2009)...................................................... 6

Goostree v. Tennessee,

..... 796 F.2d 854 (6th Cir. 1986)...................................................... 6

Guessous v. Fairview Prop. Invs., LLC,

..... 828 F.3d 208 (4th Cir. 2016)...................................................... 7

Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167 (2009).............................................................. passim

Hazen Paper Co. v. Biggins,

..... 507 U.S. 604 (1993)............................................................. 1, 3, 9

Jones v. Okla. City Pub. Schs.,

..... 617 F.3d 1273 (10th Cir. 2010).................................................. 7

Kwan v. Andalex Grp. LLC,

..... 737 F.3d 834 (2d Cir. 2013)........................................................ 7

Laugesen v. Anaconda Co.,

..... 510 F.2d 307 (6th Cir. 1975).................................................. 1, 5

Laughlin v. City of Cleveland,

..... 633 F. App’x 312 (6th Cir. 2015).............................................. 7

Leal v. McHugh,

..... 731 F.3d 405 (5th Cir. 2013)...................................................... 7

Lewis v. Humboldt Acquisition Corp.,

..... 681 F.3d 312 (6th Cir. 2012) (en banc)....................... 1, 6, 8, 9

McDonald v. Santa Fe Trail Transp. Co.,

..... 427 U.S. 273 (1976)...................................................................... 9

Robinson v. City of Phila.,

..... 491 F. App’x 295 (3d Cir. 2012)................................................ 7

Scheick v. Tecumseh Pub. Schs.,

..... 766 F.3d 523 (6th Cir. 2014)...................................................... 8

United States v. Miller,

..... 767 F.3d 585 (6th Cir. 2014)...................................................... 5

Univ. of Tex. Sw. Med. Ctr. v. Nassar,

..... 570 U.S. 338 (2013)........................................................ 3, 4, 7, 8

Wexler v. White’s Fine Furniture, Inc.,

..... 317 F.3d 564 (6th Cir. 2003) (en banc).................................... 6

Statutes

Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq................................................................................. passim

29 U.S.C. § 623(a)(1).................................................................... 2

Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq.................................................................................................... 6

..... 42 U.S.C. § 12112(a) (2007)........................................................ 6

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq............................................................................................ passim

42 U.S.C. § 2000e-2(a)(1)............................................................ 8

42 U.S.C. § 2000e-2(m)............................................................... 9

42 U.S.C. § 2000e-3(a)............................................................ 3, 7

Rules

Fed. R. App. P. 29(b)(2).................................................................... 2

Fed. R. App. P. 35(a)......................................................................... 1

Fed. R. App. P. 35(b)(1).................................................................... 1

Fed. R. App. P. 40(a)(2).................................................................... 1

Other Authorities

Dan B. Dobbs et al., The Law of Torts (2d ed. 2020).................... 5

W. Keeton et al., Prosser and Keeton on Law of Torts (5th ed. 1984)......................................................................................................... 4

INTRODUCTION AND STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC”) is the primary agency Congress charged with administering and enforcing federal laws prohibiting workplace discrimination, including the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq., and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. Affirming summary judgment against plaintiff in this ADEA case, the panel held that plaintiff “must show that age was the reason why [she] w[as] terminated, not that age was one of multiple reasons.” Slip op. at 3.

In requiring private-sector ADEA plaintiffs to demonstrate that age was the sole cause of an employment action, the panel misconstrued the ADEA and the Supreme Court’s decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). The sole-cause standard the panel announced conflicts with, inter alia, Gross; Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993); Burrage v. United States, 571 U.S. 204 (2014); Laugesen v. Anaconda Co., 510 F.2d 307 (6th Cir. 1975); Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc); and precedent from other courts of appeals. As such, panel rehearing or rehearing en banc is appropriate. See Fed. R. App. P. 35(a), 35(b)(1), 40(a)(2). Because the EEOC has a strong interest in the proper interpretation of the ADEA and other anti-discrimination statutes using materially identical causation language, it offers its views to the Court. See Fed. R. App. P. 29(b)(2).[1]

ARGUMENT

A private-sector employer violates the ADEA if it discharges or “otherwise discriminate[s] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1) (emphasis added). In Gross, the Supreme Court held that the ADEA’s use of “because of” imposes a “but-for” standard of causation. Gross, 557 U.S. at 176. Applying this standard, however, the panel opinion here went further by requiring that age be not merely a determinative cause of the employment action but its sole cause. Slip op. at 3. This conflation of but-for and sole causation conflicts with Gross and numerous other decisions from the Supreme Court, this Court, and other circuits, including decisions interpreting Gross.[2] Rehearing is therefore warranted.

A. Under Gross, Courts Must Apply A But-For Causation Standard — Not A Sole-Causation Standard — To Private-Sector ADEA Claims.

In Gross, the parties disputed whether a plaintiff may establish causation in an ADEA case by showing that age was a mere “motivating factor” in an employment decision — i.e., by demonstrating that an employer took age into account, even if age did not have a determinative effect. Gross, 557 U.S. at 173-74. The Supreme Court rejected that standard, instead reaffirming its conclusion in Hazen Paper that an ADEA plaintiff must show that age “actually played a role in [the employer’s decisionmaking] process and had a determinative influence on the outcome.” Gross, 557 U.S. at 176 (alteration in original) (quoting Hazen Paper, 507 U.S. at 610); see also Hazen Paper, 507 U.S. at 617 (holding that a plaintiff seeking to show that an employer willfully violated the ADEA need not “prove that age was the predominant, rather than a determinative, factor in the employment decision”). It was in this context that Gross concluded, “To establish a disparate-treatment claim under the plain language of the ADEA, . . . a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision.” Id. (explaining that “because of” indicates “a but-for causal relationship and thus a necessary logical condition” (citation omitted)).

The term “but-for cause” has a well-established legal meaning derived from “textbook tort law.” Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140 S. Ct. 1009, 1014 (2020) (citation omitted) (explaining meaning of but-for causation in case interpreting 42 U.S.C. § 1981). Under the “ancient and simple ‘but for’ common law causation test,” a plaintiff “must demonstrate that, but for the defendant’s unlawful conduct, its alleged injury would not have occurred.” Id.; see also, e.g., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346-47, 360 (2013) (defining but-for cause in interpreting Title VII’s anti-retaliation provision, 42 U.S.C. § 2000e-3(a)). Indeed, in Gross’s discussion of the but-for causation standard, the Court cited a torts treatise for this very test. Gross, 557 U.S. at 176-77 (citing W. Keeton et al., Prosser and Keeton on Law of Torts 265 (5th ed. 1984)).

It follows from that definition that an act qualifies as a “but-for” cause of harm — even in the presence of other causes — so long as it can be characterized as “the straw that broke the camel’s back.” Burrage, 571 U.S. at 211 (interpreting criminal statute adopting but-for standard and drawing on authority applying that standard in other contexts, including Gross). “Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.” Id.; see id. at 211-12 (noting an event is a but-for cause if the result would not have occurred in its absence, even if “a host of other necessary causes” are present).[3] Similarly, here, if the evidence showed that plaintiff’s alleged infraction would not have led to termination if she had been younger, but that the combination of her age and the infraction caused defendant to fire her, she would establish that age was a but-for cause of her termination — even if her employer would have retained her absent the infraction.

By adopting a but-for causation standard for ADEA cases, Gross therefore rejected the sole-causation standard the panel applied. Accord Dan B. Dobbs et al., The Law of Torts § 186 (2d ed. 2020) (“It is by no means true that the but-for test reduces everything to a single cause.”). Burrage, which discussed Gross in articulating the but-for causation standard described above, expressly confirmed this understanding of Gross. Id. at 212-13. Indeed, when quoting Gross, Burrage replaced the phrase “the ‘but for’ cause” with the phrase “[a] ‘but for’ cause,” emphasizing that age could be one of multiple causes of a challenged employment action. Id. (alteration in original) (emphasis added) (quoting Gross, 557 U.S. at 176); see also, e.g., United States v. Miller, 767 F.3d 585, 591-92 (6th Cir. 2014) (in criminal case, invoking Burrage’s reference to “the straw that broke the camel’s back” in describing the but-for causation inquiry under Gross and related decisions (citation omitted)).

This Court’s longstanding precedent also accords with an understanding that the ADEA requires but-for — not sole — causation. In an early case applying the ADEA, this Court explained that “even if more than one factor affected the decision to discharge [the plaintiff], he could nevertheless recover if one factor was his age and it in fact made a difference.” Laugesen, 510 F.2d at 310, 316-17; see also, e.g., Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1333 (6th Cir. 1994) (upholding jury instruction that “focuses the jury’s attention on the need for age discrimination to have been ‘a’ — not ‘the’ — determining factor” underlying an adverse action); cf. Goostree v. Tennessee, 796 F.2d 854, 863 (6th Cir. 1986) (distinguishing sole-motivation standard from “but for” standard). Gross, which confirmed the application of these principles, did nothing to alter them.^{^[4]}

More recently, this Court sitting en banc confirmed this understanding of but-for causation (both generally and specifically under the ADEA) when it addressed causal requirements under the Americans with Disabilities Act of 1990 (“ADA”), which, at the relevant time, prohibited discrimination “because of” disability, 42 U.S.C. § 12112(a) (2007). Lewis, 681 F.3d at 315-16, 321. This Court held, “A law establishing liability against employers who discriminate ‘because of’ an employee’s disability does not require the employee to show that the disability was the ‘sole’ cause of the adverse employment action.” Id. at 315-16 (distinguishing statutes expressly including a sole-cause standard). Instead, emphasizing the similarity in the ADEA’s and ADA’s causation language, and relying heavily on Gross, this Court concluded, “The ADEA and the ADA bar discrimination ‘because of’ an employee’s age or disability, meaning that they prohibit discrimination that is a ‘“but-for” cause of the employer’s adverse decision.’” Id. at 321 (quoting Gross, 557 U.S. at 176). “The same standard applies to both laws.” Id.

Numerous decisions from other courts of appeals, many of which post-date Gross, have similarly concluded that ADEA plaintiffs need only show that age was a but-for cause of the challenged employment action rather than its sole cause. See, e.g., Carson v. Lake Cnty., 865 F.3d 526, 533 (7th Cir. 2017); Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1277-78 (10th Cir. 2010); Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1334-35 (11th Cir. 1999); Robinson v. City of Phila., 491 F. App’x 295, 299 (3d Cir. 2012); see also Leal v. McHugh, 731 F.3d 405, 414-15 (5th Cir. 2013) (reaching this conclusion under Gross after assuming Gross’s standard applied to ADEA claims against a federal employer). In addition, other courts of appeals — and this Court in an unpublished decision — have similarly distinguished but-for causation from sole causation when interpreting Title VII’s anti-retaliation provision, 42 U.S.C. § 2000e-3(a), which uses similar “because” language and incorporates a but-for causation standard, Nassar, 570 U.S. at 346, 352, 360 (relying in part on Gross for that standard). See, e.g., Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 & n.5 (2d Cir. 2013); Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 218 (4th Cir. 2016); Laughlin v. City of Cleveland, 633 F. App’x 312, 316 (6th Cir. 2015). We are aware of no contrary published precedent from other courts of appeals.

B. The Panel’s Reasoning Does Not Support A Contrary Result.

The precedents the panel cited for its conclusion that the ADEA incorporates a sole-cause standard, slip op. at 3, do not support that result. Scheick v. Tecumseh Public Schools, 766 F.3d 523 (6th Cir. 2014), contains no language requiring sole causation. Instead, it simply quoted Gross and Nassar for the proposition that an ADEA plaintiff must prove “that age was the ‘but-for’ cause of the challenged employer decision” and thus “the reason that the employer decided to act.” Id. at 529 (citations omitted). To the extent that the panel relied on Scheick’s — and Gross’s — use of “the” rather than “a” before “but-for cause” and “reason,” that word cannot bear so much interpretive weight. As explained above, consistent with the well-established meaning of “but-for cause,” the Supreme Court and courts of appeals have interpreted Gross to reject a sole-cause standard. See also Burrage, 571 U.S. at 213 (replacing “the” with “a” in describing Gross’s holding: “a plaintiff must prove that age was [a] ‘but for’ cause of the employer’s adverse decision” (alteration in original) (quoting Gross, 557 U.S. at 176)); Lewis, 681 F.3d at 321 (similar).

The panel noted that Bostock v. Clayton County, 140 S. Ct. 1731 (2020), recently addressed whether Title VII’s language prohibiting workplace discrimination “because of” sex, 42 U.S.C. § 2000e-2(a)(1), requires plaintiffs to show that sex was the sole cause of an employment action. Slip op. at 3. Bostock observed that Title VII’s “‘because of’ test incorporates the simple and traditional standard of but-for causation.” 140 S. Ct. at 1738-40 (citation omitted) (clarifying that “nothing in our analysis depends on the motivating factor test” set forth in a different provision of Title VII, 42 U.S.C. § 2000e-2(m)). Under that “traditional” standard, the Court explained, “a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision,” so long as the protected characteristic “was one but-for cause of that decision.” Id. at 1739 (noting that “[o]ften, events have multiple but-for causes”). Accord McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 & n.10 (1976) (holding that Title VII’s “because of” language requires a showing of but-for — not sole — causation). In concluding that but-for causation exists “whenever a particular outcome would not have happened ‘but for’ the purported cause,” even if other factors, including other but-for factors, might also be present, Bostock positively cited Gross — and drew on the same “traditional” tort-law principles Gross invoked. 140 S. Ct. at 1739 (citing Gross, 557 U.S. at 176).

According to the panel, Bostock expressly limited its holding regarding but-for and sole causation to the Title VII context. Slip op. at 3. This Court need not decide the breadth of Bostock’s reach, however. As explained above, the conclusion that the ADEA requires a showing of but-for causation, not sole causation, is amply supported by numerous other decisions of the Supreme Court, this Court, and other courts of appeals, including Gross, Hazen Paper, Burrage, and Lewis. See supra pp. 2-7. This Court thus need not address whether Bostock provides additional support for that conclusion.

The panel also held that, even if Bostock applied beyond the Title VII context, it was bound to follow Gross, which the panel characterized as contrary to Bostock. Slip op. at 3-4. As explained above, however, the panel conflated Gross’s establishment of a but-for causation standard with a sole-causation standard. Gross and Bostock thus are entirely consistent; each adopted a but-for causation standard, not a sole-causation standard.

Moreover, as this Court explained in EMW Women’s Surgical Center, P.S.C. v. Friedlander, 978 F.3d 418 (6th Cir. 2020), on which the panel relied, lower courts are bound to apply the Supreme Court’s interpretation of its precedents, “regardless of whether [they] would adopt that interpretation as a matter of first impression.” Id. at 436. Because the Supreme Court has interpreted Gross to reject a sole-causation standard, see Burrage, 571 U.S. at 213, this Court must give that interpretation controlling weight.

CONCLUSION

For the foregoing reasons, this Court should rehear the case.

Respectfully submitted,

sharon fast gustafson

General Counsel

JENNIfer s. goldstein

Associate General Counsel

SYDNEY A.R. FOSTER

Christine Lambrou Johnson

Assistant General Counsels

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney, Appellate Litigation Services

Office of General Counsel

Equal Employment Opportunity Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 921-2549

jeremy.horowitz@eeoc.gov

February 10, 2021

[1] The EEOC takes no position on any other issue presented in this appeal, including whether plaintiff produced sufficient evidence to avoid summary judgment on the causation issue.

[2] We note that the panel did not have the benefit of full briefing on all relevant authorities at the panel stage.

[3] Tort law recognizes that the but-for standard must be supplemented in the rare case of multiple “independently sufficient factual causes,” in which each is sufficient, on its own, to cause the harm at issue. Nassar, 570 U.S. at 347; see also, e.g., Burrage, 571 U.S. at 214, 218 (giving example of one actor fatally stabbing a victim at the same time another actor fatally shoots him, and noting both would be liable). In such circumstances, none of the independent causes would satisfy strict application of the but-for causation test, yet courts typically deem causation to be established. This case does not appear to present such an issue.

[4] Some decisions of this Court preceding Gross concluded that at least some ADEA plaintiffs may establish causation by showing that age was a “motivating factor” in an employment action, at which point the burden shifts to the defendant to prove that age was not a but-for cause of the action. See, e.g., Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570, 571, 574 (6th Cir. 2003) (en banc). Gross expressly rejected that approach, 557 U.S. at 178-80, thus overruling contrary precedent, Geiger v. Tower Auto., 579 F.3d 614, 621 & n.2 (6th Cir. 2009).