D’Andra Millsap Shu, ‘The Coming Causation Revolution in Employment Discrimination Litigation’

For more than a decade, employment discrimination causation law has been a confusing, often overly restrictive quagmire that has contributed substantially to the paltry success rate of plaintiffs in employment discrimination cases. Most of these cases are dismissed pre-trial, all too often based on a failure of causation. A key reason traces back to loose and misleading language – centered on a single word – in a 2009 Supreme Court opinion involving the but-for causation standard that applies in most discrimination cases. The Court said that the discriminatory motive must be ‘the’ but-for cause of the employer’s action when it should have said ‘a’ but-for cause. This language incorrectly implies that the discriminatory motive must be the sole cause – ‘the’ cause – of the employer’s action, and though that standard is demonstrably wrong, many courts nevertheless have required a sole-cause showing.

In 2020, the Supreme Court held in Bostock that gay and transgender workers are protected from employment discrimination. But it did more than that. The Court discussed but-for causation in broad terms, making it clear that but-for cause does not require proof of sole causation. That discussion will likely change how causation impacts not only gay and transgender workers but in employment discrimination litigation generally.

This article explains why. It studies the root of the causation problem and shows its real-world consequences with extensive case law analysis. Then, it analyzes how Bostock’s broad causation language, properly interpreted, should apply to most employment discrimination claims and details why Bostock should remedy each of the identified causation issues. Based on its study of the post-Bostock litigation outcomes and the promise of Bostock’s broad application, the article predicts a revolution in employment discrimination litigation.

Shu, D’Andra Millsap, The Coming Causation Revolution in Employment Discrimination Litigation (August 1, 2021). Cardozo Law Review, forthcoming.

First posted 2021-09-03 14:00:26

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