A Better Route Through The Swamp: Causal Coherence In Disparate Treatment Doctrine

64 Pages Posted: 5 Feb 2013 Last revised: 20 Aug 2013

See all articles by Brian S. Clarke

Brian S. Clarke

Unaffiliated; Washington & Lee University School of Law; Charlotte School of Law; Western Carolina University - College of Business

Date Written: February 4, 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.

Keywords: Disparate treatment, McDonnell Douglas, NESS, restatement (third) torts, cause-in-fact, factual causation, employment discrimination

Suggested Citation

Clarke, Brian S., A Better Route Through The Swamp: Causal Coherence In Disparate Treatment Doctrine (February 4, 2013). 65 Rutgers L. Rev. 723 (2013), Available at SSRN: https://ssrn.com/abstract=2211778

Brian S. Clarke (Contact Author)

Unaffiliated ( email )

United States

Washington & Lee University School of Law

Lexington, VA 24450
United States

Charlotte School of Law

2145 Suttle Avenue
Charlotte, NC 28208
United States

Western Carolina University - College of Business

Forsyth Hall 122G
Cullowhee, NC 28723
United States
828.227.7412 (Phone)

HOME PAGE: http://www.wcu.edu/learn/departments-schools-colleges/cob/

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