ORCID (Links to author’s additional scholarship at ORCID.org)
Regardless of merit, most individual employment discrimination claims die a fast death at summary judgment. Judges apply the fine mesh net created by McDonnell Douglas v. Green, and most cases are caught in its trap. This dated, obfuscatory Supreme Court case creates a complex and flawed binary approach to causation: either discrimination or an innocent reason caused an adverse employment action. For decades, all three levels of the federal judiciary have wrestled with McDonnell Douglas, creating snarls and knots in construing causation. Because of this causal confusion, the ideal of equal opportunity in employment is on life-support.
Judges and practitioners must take note of Bostock v. Clayton County, a stunning Supreme Court case that lays a new foundation to clear this causal confusion. In this Article, I argue that Bostock creates a new mixed-motive paradigm that, if correctly applied, should transform individual discrimination law in this country by allowing juries to hear more cases. Bostock explicitly recognizes what the social sciences have long known: decision-making in the workplace is often complex, and both discriminatory and innocent reasons may be “but-for” causes of an employer’s adverse action against an employee. Tort law labels these “multiple sufficient cause” cases. In the first work of its kind, I apply the causation standards in Bostock to create a taxonomy of causation scenarios that should guide lower courts in their analysis of individual discrimination cases at pre-trial stages.
As Bostock borrows its causation standards from tort law, this Article examines the nuances of that discipline to determine the legitimacy of Bostock’s causation discussion. I conclude that while Bostock conforms to tort law, the riddle of causation persists in that and almost every discipline. Still, Bostock’s causation logic is sufficient to guide courts into the future on firm ground. In the first comprehensive work of its kind, this Article assists courts by applying Bostock at each stage of litigation through jury trials. Bostock can help revive the ideal of equal opportunity in employment.
I conclude the paper with tandem principled suggestions. First, I posit that the Court or Congress could create a burden-shifting scheme in multiple sufficient cause cases. Second, such a burden shifting of proof would pave the way for an allocation of fault scheme, similar to that found in tort law, whereby the plaintiff would recover those damages that correlate to the employer’s percentage of discriminatory causation.
Bostock: A Clean Cut into the Gordian Knot of Causation,
SMU L. Rev.