The Coming Causation Revolution in Employment Discrimination Litigation

Authors

D’Andra Millsap Shu, South Texas College of Law Houston

Abstract

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 pretrial, 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 the sole-causation standard is demonstrably wrong, many courts nevertheless have required such a 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 causation does not require proof of sole causation. That discussion will likely change how causation impacts not only gay and transgender workers but 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 post-Bostock litigation outcomes and the promise of Bostock’s broad application, the Article predicts a revolution in employment discrimination litigation.

Keywords

Criminal Law and Procedure, Discrimination, Social Group Issues, Employment, Employment Practice and the Law, Disability Law, Legislation, Civil Rights

Disciplines

Civil Rights and Discrimination | Criminal Law | Criminal Procedure | Disability Law | Labor and Employment Law | Law | Legislation

Recommended Citation

D’Andra M. Shu, The Coming Causation Revolution in Employment Discrimination Litigation, 43 Cardozo L. Rev. 1807 (2022).
Available at: https://larc.cardozo.yu.edu/clr/vol43/iss5/3