Bostock and Conceptual Causation
YALE J. REG. Notice & Comment (July 22, 2020).
10 Pages Posted: 26 Jan 2022 Last revised: 3 Mar 2022
Date Written: July 22, 2020
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."
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