Employees are often left unprotected from discrimination because they are unable to satisfy the requirement of causation. Courts have made clear that to obtain legal redress for discrimination, it is generally insufficient to show that a protected characteristic such as race or sex was a “motivating factor” of an adverse employment decision. Rather, under Supreme Court precedent—including the Court’s Comcast and Babb decisions in the 2020 term—the antidiscrimination statutes generally require a showing of “but-for” causation. Consequently, many victims of discrimination will be unable to prevail because an employer can readily refute allegations of discrimination by asserting a legitimate purpose—true or not— for the adverse decision. Therefore, although there is good reason to reject the motivating-factor test, the but-for requirement undermines the objectives of antidiscrimination law.
In this Article, I draw on notions of cause and effect in the sciences and in tort law to propose a new standard of causation for antidiscrimination law. In particular, I formulate a simple test—which I call the “fortified NESS” test, or “FNESS”—for courts and legislatures to apply as a uniform and effective standard of causation in all disparate-treatment cases. I then employ this formulation to propose concrete amendments to the civil rights statutes, and I demonstrate why these amendments are necessary and how they allow courts to uphold the critical aims of antidiscrimination law.
Alabama Law Review
Hillel J. Bavli, Causation in Civil Rights Legislation, 73 ALA. L. REV. 159 (2021).