U.S. District Judge Gregory F. Van Tatenhove (E.D. Ky.) recently conducted a trial of several members of the Jenkins family who were charge with kidnapping and beating Kevin Pennington, a gay man, because of his sexual orientation. Two members of the family, women, had pled guilty to lesser charges of assisting in commission of the crimes, but Jason and Anthony Jenkins, who performed the physical assault on Pennington, went to trial, and the court had to determine how to charge the jury regarding the hate crime counts against them. The jury convicted both men on the kidnaping and assault charges, but acquitted on the hate crime charge. The judge imposed sentences late in June, issuing a written opinion on June 20 explaining how he determined the sentences. See 2013 Westlaw 3158210. Then on July 2, he issued another opinion, this time explaining his charge to the jury on the hate crime count. See 2013 Westlaw 3338650. While such a district court opinion does not create a precedent binding on other courts, it may be very influential as the first published opinion to grapple with the sentencing issue in the context of an anti-gay hate crime charge.
“For the first time in the nation,” wrote Judge Tatenhove, “the government sought to hold defendants responsible for committing this crime “because of” one particular reason — the admitted sexual orientation of the victim. Here, the victim is gay. And at the end of many days of testimony, the jury decided that the government had failed to prove that these defendants committed that crime.” Tatenhove had charged the jury that it could find the defendants guilty on the hate crime charge if the government proved beyond a reasonable doubt that Pennington’s sexual orientation was a “substantial motivating factor” in the crime, having rejected the government’s initial request for a charge requiring a finding that Pennington’s sexual orientation was “a motivating factor” and the defense’s argument that under case law concerning different statutes that use “because of” terminology, the government would have to show that Pennington’s sexual orientation was the sole motivating factor in order to win a conviction.
Tatenhove’s discussion of this is particularly timely because the Supreme Court issued a decision on June 24, 2013, Univ. of Texas Southwestern Medical Center v. Nassar, 2013 Westlaw 3155234, addressing this issue in the context of a retaliation claim under Title VII of the Civil Rights Act of 1964, which imposes liability on an employer for taking adverse action against an employee “because” the employee has filed a complaint of unlawful discrimination or participated in a proceeding under the Civil Rights Act.
In Nassar, the Court held, following its earlier reasoning in Gross v. FBL Financial Services, 557 US 167 (2009), a case decided under the Age Discrimination in Employment Act (ADEA), that a plaintiff does not benefit from the “mixed-motive” amendment that Congress added to Title VII in 1991, when bringing an age discrimination or retaliation claim. Under the mixed- motive approach, if an employee shows that the employer’s action was motivated by the employee’s protected status (race or color, sex, religion, national origin), the employer will be found to have violated the Act even though it has proved that there was also a non-discriminatory reason that would justify its action. Such a case, involving “mixed motives,” would result in a limited remedy for the employee, since the employer had proved a non-discriminatory justification for its action, but the employer would be found to violate the Act nonetheless, as Congress decreed in its 1991 mixed-motive amendment. The Court held in Nassar that the mixed-motive amendment applied only to status discrimination claims under Title VII, but not to retaliation claims, based on the Court’s strict construction of the wording of the amendment. As noted above, the Court had previously ruled out the mixed-motive approach in age discrimination cases, finding that the mixed-motive amendment, by its terms, did not apply to cases arising under statutes other than Title VII of the Civil Rights Act. Thus, it seems that a retaliation claim can succeed only if the plaintiff shows that the sole reason for the employer’s action was the employee’s protected activity of filing a discrimination charge, or, in an age discrimination case, that the plaintiff’s age was the sole reason for the employer’s challenged action.
Given this history, Tatenhove found, he could not accede to the government’s request to charge the jury that it could convict on the hate crime charge upon proof that Pennington’s sexual orientation was “a motivating factor” in the Jenkins’ decision to go after him. He described existing cases concerning racially-motivated hate crimes, finding that the 6th Circuit had adopted a “substantial reason” charge in one case, McGee, relying on a prior decision by the 8th Circuit. He also noted a district court decision in a hate crime case from Ohio involving religion, where the court instructed the jury using the phrase “significant motivating factor.” Thus, it appeared that several courts dealing with hate crime cases involving other categories had not required that the prohibited ground be the “sole” reason why the defendant had attacked the victim.
But the court saw Gross as a problem, because the hate crimes law uses the same “because of” language as the ADEA. “The Court recognized that Congress had utilized the ‘a motivating factor’ standard and the burden shifting framework in the Title VII context, but as no such amendment had been provided by Congress for the ADEA, the normal meaning of ‘because of’ should govern” in an ADEA case. Thus, in Gross, the Supreme Court “concluded that, ‘under Sec. 623(a)(1), the plaintiff retains the burden of persuasion to establish that age was the ‘but-for’ cause of the employer’s adverse action.” Tatenhove noted that recently the 6th Circuit had applied Gross to a case under the Americans With Disabilities Act, which uses similar “because of” language in its operative provision.
The judge found the case law perplexing when focusing on how to charge the jury in the Jenkins case. “So,” he wrote, “the phrase ‘because of’ has meant ‘a motivating factor,’ or ‘a substantial reason,’ or ‘a significant factor,’ or ‘solely because of,’ or the ‘but-for’ cause of. Why? It is not because Congress has clearly defined the phrase beyond the clear meaning of the words. Instead, where the line is drawn appears to rest on the predilections of a particular judge or court. That is not how this is supposed to work.”
He went on to describe the policy implications of picking one formulation as opposed to another. He characterized the arguments between the prosecution and the defense in this case over the correct jury charge as having “the decided feel of a legislative mark-up session during a congressional session rather than a charge conference. The words here, ‘because of’, must mean something concrete that is solid and unalterable from case to case to case. Otherwise, as noted, the trial judge becomes a one person policy shop deciding, what? How compelling the facts are of a particular case? Whether justice requires that a person lose their liberty if they had just a trace of hate in their heart, or, on the other hand, acted solely because of that hate and for no other reason? Whatever the strengths of the modern judiciary, we not only should not make such decisions, we are designed to be particularly bad at them.” He also noted that an “expansive interpretation of the statutory language could certainly raise constitutional questions.”
He noted that during the argument over charging, the prosecution had changed its position, giving up the demand for “a motivating factor” and being willing to settle for something intermediate between that and the “but-for” language of Gross. The government argued that the court was not required to treat Gross as binding merely because of the same wording in the two statutes, but instead “should rely heavily on legisaltive history to uncover the intent of Congress as to the appropriate standard for each statute.” As to this, Congress clearly intended to expand the applicability of the hate crimes law, so, argued the prosecution, “a more narrow standard would be counter to this intent.” The judge pointed out that the 6th Circuit, confronted by this kind of argument, had ultimately concluded that “in the end it is the text that matters.” And, as to the legislative history of the hate crimes law, he said, “Congress never mentions that it seeks to expand the reach of sec. 245 by altering the meaning of the words ‘because of’ to lower the standard necessary to prove that element of the crime.” Indeed, Congress never explicitly addressed the issue, so the “but-for” test looms as the one that must be used.
However, Tatenhove decided not to use the phrase “but-for” in his charge. “Congress could not have meant for ‘because of’ to stand for the proposition that only when motivated by no other factors than sexual orientation should the law apply,” he asserted. “That would fly in the face of common sense and what we know about human interaction. But, as discussed above, unless somehow modified by Congress, the plain meaning of the words ‘because of’ must mean that the sexual orientation of the victim becomes a necessary prerequisite to the assault. That is a status reserved only for the most substantial of the motivating factors. There may be others of substance, but, in the final analysis, sexual orientation must be the factor that motivates the conduct — ‘the substantial faactor.’ Other courts will no doubt wrestle with this same issue, reach similar conclusions, and rest on different, and perhaps better, language to communicate the meaning of those conclusions. That is the natural progression of the common law and the craft of being a judge.”
So Judge Tatenhove used “substantial motivating factor” in his jury charge, apparently believing that this met the “but-for” requirement of Gross but without imposing a “sole reason” test. For example, if Pennington’s sexual orientation was a “substantial factor” in explaining why he was the victim of the Jenkins’ assault, but the jury had evidence that the Jenkins had some other gripe against Pennington having nothing directly to do with his sexual orientation but which played as much of a part in their reasons for going after him, then would the hate crimes law apply? Would the prosecution have to show that the Jenkins’ would not have carried out their grudge against Pennington in the form of an actual kidnapping assault if he was not gay, in order to win a conviction on the hate crimes count?
In this case, thus charged, the jury acquitted Jason and Anthony Jenkins of the hate crimes charge, while convicting on kidnapping and assault. Did the charge give the jury pause and ultimately lead to acquittal on the hate crimes charge? Without having seen all the evidence that the jury saw, one is not in a position to second-guess, but presumably the wording of charges does make a difference, or opposing counsel would not argue vociferously about them. Is it possible that the jury charge sought by the prosecution would have led to a conviction based on the evidence presented? Media accounts of the trial suggest that Pennington’s sexual orientation was very much a factor in making him a victim in this case.
Ultimately, however, the question is for Congress. Is it satisfied with the Court’s decisions in Gross and Nassar? If not, Congress should consider clarifying its intent. One simple way would be to add an interpretive amendment to all statutes that use “because of” language, describing the standard of proof to be required for prosecutions or enforcement actions under the statutes. The 1991 amendment to Title VII (Sec. 703(m)), could be amended to overrule Nassar and apply the mixed-motive test in all “because of” cases under Title VII, and could be imported into the ADEA and the ADA. Similar language might be adopted as an amendment to the Hate Crimes Act. And similar language should be considered for the pending Employment Non-Discrimination Act (ENDA), which will be receiving a mark-up hearing in the Senate on July 10.