United States: Causation In Federal Remedial Rights And Alternative Pleading

Last Updated: October 26 2015
Article by Johanna T. Wise and Alex Meier

Several recent Supreme Court decisions have upended causation standards in the statutory alphabet soup of federal remedial rights. It is now clear that "but for" causation governs discrimination claims under the Age Discrimination in Employment Act ("ADEA") and retaliation claims under Title VII of the Civil Rights Act of 1964 ("Title VII").  The Supreme Court held so in Gross v. FBL Financial Services, Inc. and University of Texas v. Nassar, respectively.  Title VII's discrimination provision contains language unique to that portion of the statute, so the Supreme Court left mixed-motive causation under that provision undisturbed.

Many circuits, however, have yet to definitively commit to one camp or another regarding the causal relationship necessary to establish liability under the Americans with Disabilities Act ("ADA") and the Family and Medical Leave Act ("FMLA").  The principal split concerns whether mixed-motive causation or the more exacting but for causation standard is required to state a claim.  Courts also disagree about whether an adverse employment action can have multiple but for causes.

The practical difference is significant.  If mixed-motive causation controls, then an employee may have a viable claim if the adverse employment actions resulted from both permissible and impermissible considerations.  If, on the other hand, but for causation controls, then an employee must prove that the adverse employment action would not have occurred without the impermissible consideration.

Open Questions In Causation

The more interesting questions emanate from the penumbra of those Supreme Court decisions.  For example, the ADA contains identical language to Title VII's retaliation provision.  The ADA has traditionally permitted claims as long as discrimination is a "motivating factor."  Post-Nassar courts, however, are in unanimous disagreement about whether ADA plaintiffs must now demonstrate a more significant causal relationship between the adverse action and the alleged discriminatory intent.

So too with FMLA retaliation claims. FMLA retaliation claims historically have considered mixed-motive causation to be sufficient.  Recently, several appellate courts, including the Fifth and Third Circuits, recognized that Nassar may require but for causation but opted to dodge the issue for the time being.

Strategic Implications

The difference between mixed-motive and but for causation is more than academic.  Beyond the difference in proof, several district courts have found that but for causation requires that the alleged discriminatory action be the sole cause for the wrongful termination or adverse action.  If, for example, a plaintiff alleges that she was terminated because of her age in violation of the ADEA, several courts have found that the plaintiff may not simultaneously claim that she was terminated because of her disability because there can only be one but for cause for the alleged adverse treatment.  As Stanley Fish has said, "if you believe this, how can you also believe that?"

Courts, however, are equally splintered on whether Nassar and Gross obligate an employee to commit to one claim as they are regarding what degree of causation must be proven.  Some judges are willing to dismiss claims at the motion-to-dismiss stage if the employee refuses to name the sole but for cause.  Others will allow employees to claim multiple but for causes as "alternative pleadings" under Federal Rule of Civil Procedure 8(d)(3), which authorizes inconsistent claims and claims in the alternative.

Judge William Acker in the Northern District of Alabama is a particularly strong proponent of the stricter version of but for causation.  In Savage v. Secure First Credit Union, a plaintiff claimed race discrimination and retaliation under Title VII, age discrimination under the ADEA, and disability discrimination under the ADA. Following a motion to dismiss, the court gave the plaintiff an ultimatum: either stand by her current complaint and have all of her but for causation claims dismissed with prejudice; or pick only one of her claims that require but for causation and dismiss the others.  Judge Acker reasoned that but for causation requires that the unlawful action "would not have occurred in the absence of the alleged wrongful action or actions of the employer" because that standard requires "no proscribed motives" other than the single but for cause alleged.  Because the plaintiff alleged multiple causes (age, retaliation, and disability), the plaintiff expressly claimed other irreconcilable and contradictory motivations played a role in her adverse treatment.

Like in Savage, an employer faced with a disgruntled employee who claims that adverse action taken against him was the product of several different types of discrimination may be able to winnow down the employee's claims to one.  This early limitation has several benefits as it forces the employee to commit to a single basis for the alleged adverse action and may decrease the scope and cost of discovery.

We expect some incoming clarity as several courts of appeal are considering cases that squarely present the issue.  If the applicable jurisdiction has not committed to either camp, raising this argument may be an effective way to limit an employer's exposure by reducing the lawsuit's scope very early on in the litigation process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions