Employment discrimination is notoriously hard to prove. From the scarcity of evidence to the skepticism of jurors, plaintiffs in employment discrimination or employment retaliation cases face an uphill battle to prove that a discharge or demotion was caused by unlawful animus. Fortunately for Minnesota plaintiffs, however, Minnesota courts have long employed a causation test that is more plaintiff-friendly than the norm under many federal statutes. Under the burden-shifting test established in McDonnell Douglas Corp. v. Green, and adopted under many Minnesota workplace statutes, plaintiffs can demonstrate causation simply by demonstrating that unlawful animus was a “motivating factor” in an employment decision. This standard is less stringent than the standard typically employed under federal statutes such as the Age Discrimination in Employment Act (ADEA), which requires plaintiffs to show that unlawful animus was the “but-for” cause of an employment decision.

Nonetheless, Minnesota and federal cases have sometimes blurred the line between Minnesota’s relaxed standard and the more stringent but-for standard. Some Minnesota cases have applied a functional “but-for” test by requiring plaintiffs to prove that an employer had no motive besides unlawful animus. The Eighth Circuit routinely applies a similar test to discrimination and retaliation claims arising under Minnesota law.

Clarity is needed from Minnesota’s courts or its legislature regarding the applicable causation standard for discrimination and retaliation claims under Minnesota law. The motivating-factor test is preferable to the but-for test in view of the employee-protective policies underlying Minnesota’s workplace discrimination and retaliation statutes. A motivating-factor standard also better accounts for the practical reality that employers often have multiple reasons for making a single employment decision.