Causation in Civil Rights Legislation

33 Pages Posted: 11 Feb 2021 Last revised: 17 Jun 2021

See all articles by Hillel J. Bavli

Hillel J. Bavli

Southern Methodist University - Dedman School of Law

Date Written: January 15, 2021

Abstract

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. This means that employees can rarely prevail because it is often easy for an employer to rebut 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.

Suggested Citation

Bavli, Hillel, Causation in Civil Rights Legislation (January 15, 2021). 73 Alabama Law Review (2021 Forthcoming), SMU Dedman School of Law Legal Studies Research Paper No. 497, Available at SSRN: https://ssrn.com/abstract=3784038 or http://dx.doi.org/10.2139/ssrn.3784038

Hillel Bavli (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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