By Dr. Ken Broda Bahm:
Once a judge begins to solemnly instruct the jury, some assumptions immediately kick in. We assume the jurors follow and are comprehending the sometimes fine distinctions in law that have been fought over in the weeks before trial. And we assume that, once understood, those instructions are effective in guiding the jurors’ behavior in the right direction. Some will say the instructions don’t matter, since most jurors simply apply their own basic rules of fairness and responsibility to the situation. A new controlled study, however, looked at a revision to the instructions in age discrimination claims stemming from a recent Supreme Court decision, and found that the new “but for” standard for determining the cause of termination carries a substantial and quantifiable pro-defense advantage.
The research (Wiener & Farnum, 2013) is focused specifically on causation in the specific context of discrimination claims, which of course bears on the motivation, or the reason, for termination and is limited in implication to the new language under the Court’s interpretation of the Age Discrimination in Employment Act. Still, the study’s conclusions provide a window into the differences we could see when logical (or proximate) cause is viewed alternately as a substantial contributing factor, or as that single factor that had to have been there in order for the result to have occurred. This post takes a look at the study and the implications for age discrimination claims and defenses, and also the implications for anyone dealing with causation and having a choice of law or the potential to argue for particular versions of cause instructions.
The Study: A Higher Bar for Age Discrimination Plaintiffs
Richard Wiener and Katlyn Farnum of the University of Nebraska, Lincoln conducted the study to focus on the effect of the Supreme Court’s decision in Gross v. FBL Financial Services Inc. (129 S.Ct. 2343) which changed the governing law in age discrimination from one in which plaintiffs could argue that even in cases with a mixed motive, defendants are still liable for damages and costs when employment decisions include an age-discriminatory rationale. Instead of allowing for mixed motive and requiring defendants to prove that the same decision would have been made even without the illegitimate factor, the Court required plaintiffs to prove that “but for” the discriminatory influence of the plaintiff’s age, the adverse employment action would not have been taken.
Using the fact pattern from that case, Wiener and Farnum sought to measure exactly what difference it makes for jurors to be instructed in the higher standard. Randomly dividing 126 online study participants, the researchers provided a factual overview along with one of three different instructions:
- One group heard the earlier legal standard: The plaintiff need only prove that his age played a motivating part in the defendant’s decision, even though other factors allowable under the law may also have motivated the defendant.
- A second heard an intermediate legal standard: You must decide whether the defendant has proved, by a preponderance of the evidence, that it would have fired the plaintiff regardless of his age.
- And a final group heard the “but for” instruction: The plaintiff must prove by a preponderance of the evidence that age played a role in the defendant’s decision to fire him and that the defendant would not have fired the plaintiff if it had not considered age in making that decision.
While the study also considered the level of motivation within the participants (differentiating those with a “promotion focus” and those with a “prevention focus”), that angle may be best saved for another post. The prime finding of the study is that just altering the instruction to include the “but for” requirement resulted in raising the defense verdicts from 45 percent to 62 percent. Repeating the experiment with a fact pattern suggesting more ambiguous discrimination, the researchers noted a comparable result and concluded that the study provides preliminary support for the conclusion that “disallowing the mixed-motive theory stacks the deck against plaintiffs in age discrimination cases and, therefore, contributes to the policy debate about whether Congress should amend the ADEA to allow mixed-motive instructions in age discrimination cases.”
The Implications
1. For Age Discrimination Claims…
Based on the data, the use of a “but for” standard can mean the difference between the plaintiff winning or losing. As that quotation above indicates, the study’s authors highlight how their results should be used to support legal reform. In addition to being used to petition the halls of Congress, however, the research should also definitely be cited in any briefing seeking to overturn or limit the reliance on a “but for” standard in employer motivation contexts. In the meantime, defendants who embrace the new standard and maximize its expression during instructions will face better odds. That embrace should include: a) the clearest version of the test as validated in the Supreme Court’s Gross case; b) a pre-instruction, if the judge allows, so jurors know what standard they’re supposed to be applying while they’re hearing the evidence, instead of after they hear it; and c) the ability of counsel to identify, explain, and teach the standard during closing argument or, even better, opening statement.
2. For All Causation Scenarios…
Cause in the sense of “what motivated the decision” matters in employment, but the broader concept of cause in the sense of “what created the damages” also plays a role in nearly all tort and contract law settings. The sequence of one event leading to another is a part of every litigation story and is generally represented in the elements as well. I know from mock trial experience, where the instructions are often truncated, that jurors will typically bring their own intuitive views that a cause can either mean “one of many contributing factors” or “the one decisive factor without which the result would not have occurred.” Proximate cause is one of those legal concepts that only has meaning once jurors pick it up and interpret it. Whether the effect occurs “as a natural, direct, and uninterrupted consequence” arguably admits either standard.
As a result, all litigants should seek to clarify, and based on this research, defendants should seek to be as close as possible to a “but for” phrasing. That can mean a) selecting and focusing on claims that carry a clear “but for” standard; b) asking for the “but for” instructions where the law allows and choosing those instructions that provide more explanation; and c) explaining causation as “but for” in closing argument if the judge allows you to.
In both employment and nonemployment contexts, jurors will not simply be slaves to a literal reading of the instructions. Instead, they will apply a broad sense of “responsibility” and “just deserts” to the narrative. But this study provides additional proof that the instructions matter as well. What is true in causation, is also true in instructions: even small differences can have a big effect.
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Other Posts on Causation:
- Help Your Fact Finders Think About What Might Have Been
- Mind the Gap: Stop Jurors From Jumping Straight From Liability to Damages
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Other Posts on Instructions:
- Know the Limits of Limiting Instructions (But Don’t Necessarily Discard the Instruction to Disregard)
- Address Your Jury’s Inevitable Difficulty With TheInstructions
- Just the Instructions, and Nothing But theInstructions: Increase the Salience of Jury Instructions
- Take a Schematic Approach to Jury Instructions
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Wiener, R. L., & Farnum, K.S. (2013). The psychology of jury decision making in age discrimination claims. Psychology, Public Policy, and Law, 19(3), Aug 2013, 395-409.
Photo Credit: Olga Filonenko, Flickr Creative Commons