MCQUILLEN
v.
WISCONSIN EDUCATION ASSOCIATION COUNCIL ET AL.

U.S. | 1988-02-29
No. 87-999
485 U.S. 914 Supreme Court of the United States (1988) Positive Treatment
Cited by 8 cases
Topics
Determining Factor Causation Standard Disparate Treatment Title Vii Of The Civil Rights Act Of 1964

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Dissent
Justice White,

Justice White,

dissenting.

This case presents the question whether a plaintiff may prevail on a disparate treatment claim under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. § 2000e et seq., only by establishing that the employer’s discriminatory intent was the “but for” cause of the adverse employment action. The Court of Appeals for the Seventh Circuit held in this case that a Title VII plaintiff must prove that “the discriminatory motivation was a determining factor in the challenged employment decision in that the employee would have received the job absent the discriminatory motivation.” 830 F. 2d 659, 664 (1987). The court found support for this “but for” standard of causation in the language of Title VII, which prohibits employers from discriminating against an employee or potential employee “because of such individual’s race, color, religion, sex or national origin.” § 2000e-2(a)(l) (emphasis added).

The Seventh Circuit expressly rejected the standard of causation adopted by the Eighth Circuit in Bibbs v. Block, 778 F. 2d 1318 (1985) (en banc). A plaintiff can establish Title VII liability under Bibbs merely by proving that “an unlawful motive played some part in the employment decision.” Id., at 1323. If the employer establishes that discriminatory intent was not the determinative factor in the employment decision, however, the plaintiff’s recovery is limited to declaratory relief, an injunction against future or continued discrimination, and partial attorney’s fees.

The Seventh Circuit’s view that Title VII liability is established only when an unlawful motive was the “but for” cause of the challenged employment action is shared by three other Circuits. See Haskins v. United States Dept. of Army, 808 F. 2d 1192, 1198 (CA6), cert. denied, 484 U. S. 815 (1987); Lewis v. University of Pittsburgh, 725 F. 2d 910, 915-916 (CA3 1983), cert. denied, 469 U. S. 892 (1984); Mack v. Cape Elizabeth School Bd., 553 F. 2d 720, 722 (CA1 1977). Two Circuits have indicated that the discriminatory motive must be a “significant” or “substantial” factor, but not necessarily the determinative factor, before liability may be imposed on an employer under Title VII. See Fadhl v. City and County of San Francisco, 741 F. 2d 1163, 1166 (CA9 1984); Whiting v. Jackson State University, 616 F. 2d 116, 121 (CA5 1980).

Accordingly, in view of the divergent positions taken by the Federal Courts of Appeals with regard to the standard of causation to be applied in determining Title VII liability, I would grant certiorari.

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  • Price Waterhouse v. Hopkins, 490 U.S. 228 (U.S. 1989)
    …lan, the question of the plan’s validity need not be reached unless the plaintiff shows that the plan was a but-for cause of the adverse decision. See McQuillen v. Wisconsin Education Association Council, 830 F. 2d 659, 665 (CAT 1987), cert. denied, 485 U. S. 914 (1988). Presumably it will be easier for a plaintiff to show that consideration of race or sex pursuant to an affirmative-action plan was a substantial factor in a decision, and the court will need to move on to the question of a plan’s validity. M…
  • Fredette v. BVP Mgmt. Assocs., 112 F.3d 1503 (11th Cir. 1997)
    …rt addressed the merits of whether or not discrimination in violation of Title VII had taken place. See also Wilson v. Bailey, 934 F. 2d 301 (11th Cir.1991), and McQuillen v. Wisconsin Educ. Ass’n Council, 830 F. 2d 659 (7th Cir.1987), cert. denied, 485 U.S. 914, 108 S.Ct. 1068, 99 L.Ed.2d 248 (1988) (both addressing the sex discrimination claims of male plaintiffs without assigning any significance to the fact that the relevant employment decisions were made by another male). We recognize that the cited…
  • Artis v. Hitachi Zosen Clearing, 967 F.2d 1132 (7th Cir. 1992)
    …86) ("ultimate inquiry in a Title VII disparate treatment claim is whether a discriminatory intent was a `but for' cause of the adverse action"); and McQuillen v. Wisconsin Educ. Ass'n Council, 830 F. 2d 659, 664 (7th Cir.1987) (same), cert. denied, 485 U.S. 914, 108 S.Ct. 1068, 99 L.Ed.2d 248 (1988). Although the argument has some intuitive appeal, an employment discrimination case is not as simple as Clearing would have us suppose. Race-based intent is hard to prove. It's not nice to utter racial epithet…

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