Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 6. Causation
distribution crimes could not be subjected to the heightened penalty where there were multiple
sufficient causes of the death of the purchaser.
The Court’s Burrage decision seems to recognize the substantial factor approach for
liability purposes but not for sentencing purposes. Does this make sense? More generally, why
construe Congress’s use of the phrase “results from” as applying only to deaths that would not
have happened but-for the relevant crime, rather than as applying to deaths that fall within one of
the causation doctrines that we find in the ordinary law of torts? Justice Scalia cited the “rule of
lenity,” which favors interpreting ambiguous statutes in favor of a criminal defendant.
2. Employment Discrimination
One way courts can mitigate the problem of multiple sufficient causes is to shift the
burden of proof. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court held that once a
plaintiff is able to show that discrimination was a motivating factor, the burden shifts to the
defendant to show that the discrimination was not a but-for cause of the employment decision.
Two years later, Congress amended the Civil Rights Act of 1991 such that an employee has to
prove only that discrimination was a “motivating factor” in the discharge decision, a standard that
allows plaintiffs to prevail even if the discriminatory conduct is neither necessary nor sufficient to
the employment decision (Congress limited damages for plaintiffs who could not prove
discrimination was a but-for cause to declaratory judgment, attorney’s fees, and some types of
injunctive relief). Recently, the Court declined to extend either the logic of Price Waterhouse or
of the Civil Rights Act of 1991 to age discrimination claims, ruling that age discrimination
claimants must show that age discrimination was a necessary cause of the adverse employment
decision. Gross v. FBL Fin. Servs., 557 U.S. 161, 167 (2009). Most recently, the Court also
insisted on but-for causation in retaliation claims, which arise when an employee alleges that an
employer has retaliated against an employee due to the filing of a race or gender discrimination
claim. Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013).
What is it about race and gender employment discrimination claims that justifies deviation
from the but-for causation standard? Is it the difficulty of determining the reasons behind a
decision, the evidentiary advantage an employer has over an employee, the public policy
importance of discouraging discrimination, or something else? Do any of these characteristics
change for age discrimination or retaliation claims?
3. Environmental Law
In United States v. NCR Corp, 688 F.3d 833 (7th Cir. 2012), the Environmental Protection
Agency (EPA) required NCR Corporation, one of several polluters, to undertake cleanup efforts.
NCR did so for some time and then stopped, alleging that it had already completed its fair
apportionment of the cleanup effort. The Seventh Circuit held that because each tortfeasor’s acts
were sufficient causes, and because apportionment of blame was therefore impossible, the EPA
had the discretion to command NCR to undertake up to all of the cleanup efforts. In parallel cases
where NCR attempted to recover from the other polluting companies, it failed because other
companies successfully pleaded that NCR was exclusively aware of the significant risks of the
toxic product.
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