Faculty Journal Articles and Book Chapters

ORCID (Links to author’s additional scholarship at ORCID.org)

https://orcid.org/0000-0003-4888-2842

Abstract

Standards of causation in antidiscrimination law, and disparate-treatment cases in particular, are deeply flawed. Their defects have caused an illogical, obscure, and unworkable proof scheme that requires an overhaul to curb the harm that it engenders and to allow the antidiscrimination statutes to serve their objectives effectively. This Article proposes a theory and method of causation that achieves this goal. The problem stems from the inadequacies associated with current standards of causation in disparate-treatment cases—the but-for test and the motivating-factor test. The proposed “factorial” approach introduces a causal standard that addresses these inadequacies. It entails three innovations over current causation schemes: 1) it adopts a predominant framework for cause and effect in the sciences, called the “potential-outcomes” framework, as a central structure in which to sharply define and analyze the causal inquiry; 2) it employs a causal measure, called the “NESS” test, that refines and, in a sense, unifies the but-for and motivating-factor tests by retaining the central feature of the but-for test—the “necessity condition”—but in a less restrictive form; and 3) it applies a legal framework grounded in tort law and recent advances regarding multiple sufficient causes. In addition to reflecting actual cause and effect, the proposed approach promotes antidiscrimination law’s deterrence and fairness objectives, and it allows an interpretation of causal language in antidiscrimination statutes that is consistent with good policy and Congress’s intent—an interpretation not possible under current standards.

Publication Title

Iowa Law Review

Document Type

Article

Keywords

antidiscrimination, employment discrimination, causation, causality, cause and effect, tort law, multiple sufficient causes, ness, disparate treatment, Supreme Court, but-for, motivating-factor, statutory interpretation

Included in

Law Commons

Share

COinS
 

Digital Object Identifier (DOI)

http://dx.doi.org/10.2139/ssrn.3551403

 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.