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Indiana Law Journal

Document Type

Article

Publication Date

Spring 2023

Publication Citation

98 Indiana Law Journal 1135 (2023)

Abstract

When rejecting plaintiff-friendly liability standards, courts often cite a fear of opening the floodgates of litigation. Namely, courts point to either a desire to protect the docket of federal courts or a burden on the executive branch. But there is little empirical evidence exploring whether the adoption of a stricter standard can, in fact, decrease the filing of legal claims in this circumstance. This Article empirically analyzes and theoretically models the effect of adopting arguably stricter liability standards on litigation by investigating the context of one of the Supreme Court’s most recent reliances on this argument when adopting a stricter liability standard for causation in employment discrimination claims. In 2013, the Supreme Court held that a plaintiff proving retaliation under Title VII of the Civil Rights Act must prove that their participation in a protected activity was a but-for cause of the adverse employment action they experienced. Rejecting the arguably more plaintiff-friendly motivating-factor standard, the Court stated, “[L]essening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer[s], administrative agencies, and courts to combat workplace harassment.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 358 (2013). And over the past ten years, the Court has overturned the application of motivating-factor causation as applied to at least four different federal antidiscrimination statutes. Contrary to the Supreme Court’s concern that motivating-factor causation encourages frivolous charges, many employment law scholars worry that the heightened but-for standard will deter legitimate claims. This Article empirically explores these concerns, in part using data received from the Equal Employment Opportunity Commission (EEOC) through a Freedom of Information Act (FOIA) request. Specifically, it empirically tests whether the adoption of the but-for causation standard for claims filed under the Age Discrimination in Employment Act and by federal courts of appeals under the Americans with Disabilities Act has impacted the filing of discrimination claims and the outcome of those claims in federal court. Consistent with theory detailed in this Article, the empirical analysis provides evidence that the stricter standard may have increased the docket of the federal courts by decreasing settlement within the EEOC and during litigation. The empirical results weigh in on concerns surrounding the adoption of the but-for causation standard and provide evidence that the floodgates argument, when relied on to deter frivolous filings by changing liability standards, in fact, may do just the opposite by decreasing the likelihood of settlement in the short term, without impacting the filing of claims or other case outcomes.

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