Category Archives: Gross v. FBL Fin. Servs.

Last week the Supreme Court heard Husted v. A. Philip Randolph Institute, a big voting-rights case that—as I only recently learned—involves a statute raising a linguistic issue similar to the one I argued in my amicus brief in University of Texas Southwestern Medical Center v. Nassar. The statute in each case makes it illegal to take certain action if  the action is taken for a prohibited reason. In Husted, the statute prohibits states from removing people from the list of eligible voters “solely by reason of a failure to vote.” In Nassar, it prohibited employers from discriminating against any employee “because he has opposed any practice made an unlawful employment practice by [the statute], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the statute].”

The linguistic issue that I want to talk about is whether the boldfaced language in each statute has the effect of requiring “but for” causation. As the lawyers reading this will know, a “but for” cause is a cause without which (i.e., but for which) the result in question would not have occurred. In philosophy, but-for causes are referred to as “necessary causes,” and they are distinguished from “sufficient causes,” which are causes that would be sufficient to bring about the result, but that may co-occur with other sufficient causes.

My amicus brief in Nassar (discussed here and here) challenged the Supreme Court’s earlier holding in Gross v. FBL Financial Services that under a statute prohibiting discrimination “because of” an employee’s age, plaintiffs are required to prove that their age was a but-for cause of the employer’s action against them. The Court in Gross had relied mainly on dictionary definitions (which didn’t actually address the issue, but never mind that), as well as on cases in that had held but-for causation to be required by the various other expressions, including by reason of. My brief argued that Gross was incorrect and that its error should not be extended to the different statute that was at issue in Nassar. I knew that the odds were against my argument being accepted by a majority of the justices, but I figured that at a minimum, the dissenters would pick up on it. As things turned out, that was, shall we say, overoptimistic on my part. The brief went nowhere.

And now along comes Husted, which gives me an excuse opportunity to bring up this issue again.

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