Bostock and Conceptual Causation

YALE J. REG. Notice & Comment (July 22, 2020).

10 Pages Posted: 26 Jan 2022 Last revised: 3 Mar 2022

See all articles by Guha Krishnamurthi

Guha Krishnamurthi

University of Oklahoma College of Law

Peter Salib

University of Houston Law Center

Date Written: July 22, 2020

Abstract

Was Bostock properly decided, as a matter of textualist jurisprudence and the doctrine of but-for causation? We contend that the Court's but-for reasoning remains something of a loose thread. We argue that the case can be understood as properly decided under a different rubric. Title VII outlaws discrimination "because of ... sex." We develop an interpretation of "because of" that comports with ordinary intuitions across a variety of discrimination cases. Our interpretation also justifies the Bostock majority's holding that discrimination on the basis of sexual orientation is discrimination "because of ... sex."

Suggested Citation

Krishnamurthi, Guha and Salib, Peter, Bostock and Conceptual Causation (July 22, 2020). YALE J. REG. Notice & Comment (July 22, 2020)., Available at SSRN: https://ssrn.com/abstract=3976417

Guha Krishnamurthi

University of Oklahoma College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States

Peter Salib (Contact Author)

University of Houston Law Center ( email )

4104 Martin Luther King Blvd.
Houston, TX 77204
United States

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