A Better Route Through The Swamp: Causal Coherence In Disparate Treatment Doctrine
Brian S. Clarke
Charlotte School of Law; Washington & Lee University School of Law
February 4, 2013
65 Rutgers L. Rev. 723 (2013)
Disparate treatment doctrine has long been a swamp and it is getting deeper and murkier. The various judicially and legislatively created routes through the swamp – proof schemes – are poorly marked and, at best, imperfect. Critically, the routes through the swamp have become unmoored from the critical cause-in-fact inquiry they were ostensibly designed to illuminate.
Focusing on cause-in-fact, this article seeks to establish causal coherence in disparate treatment doctrine by applying – for the first time – modern cause-in-fact theory, including the necessary element of a sufficient causal-set (“NESS”) standard articulated in the Restatement (Third) of Torts, across the various individual disparate treatment statutes and theories. In order to implement this new-found causal coherence, this article proposes a better route through the swamp in the form of a unified proof scheme for use in all individual disparate treatment cases regardless of statute or theory that is rooted in this conception of causal necessity based on the ubiquitous McDonnell Douglas proof scheme.
Number of Pages in PDF File: 64
Keywords: Disparate treatment, McDonnell Douglas, NESS, restatement (third) torts, cause-in-fact, factual causation, employment discriminationAccepted Paper Series
Date posted: February 5, 2013 ; Last revised: August 20, 2013
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