Causation in Antidiscrimination Law: Beyond Intent Versus Impact

84 Pages Posted: 16 Aug 2004

See all articles by Sheila Foster

Sheila Foster

Georgetown University; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law


Antidiscrimination law and scholarship for a long time has been engaged in the debate over whether a discriminatory intent or disparate impact test best captures the type of discrimination the law should, or can, prohibit. In this article, I suggest that we move beyond this dichotomous debate and focus instead on how courts reason about discrimination cases brought under both the intent and impact doctrines. I identify a distinct pattern, or framework, in the way courts reason about discrimination in both types of cases that defies neat doctrinal labels. This reasoning process, which I short handedly refer to as causation, is at the heart of evidentiary structures in both intent and impact actions. Unfortunately, the reigning distinction between intentional and disparate impact discrimination, an increasingly blurry one, has obscured the more important focus on the element of causation which, in my view, constitutes the normative core of antidiscrimination law.

Beyond illustrating this common causal element, a close examination of the causal reasoning processes in antidiscrimination law provides a window into understanding why, despite the existence of generous evidentiary mechanisms, intent and impact actions have ceased being a viable avenue of relief for discrimination plaintiffs. What this examination reveals is that courts in intent and impact actions share a common way of reasoning about discrimination and, in particular, the causal inquiry at the heart of discrimination claims. Both intent and impact causes of action are premised on a three-step process of causal inquiry: status inference, neutral explanation, and causal attribution. This three-step causal inquiry is itself based in, and reliant upon, two types of reasoning processes - counterfactual and contrastive thinking - that social scientists have found dominate causal determinations. These two reasoning processes not only permeate causal thinking, but are also shaped by various influences - normative expectations and cognitive biases, for example - that critically shape these reasoning processes and can have a determinative role on causal attributions. Informed by this research, I illustrate that the causal inquiry at the heart of evidentiary structures in both intent and impact actions has, over time, become vulnerable in two respects.

First, the evidentiary structures employed to discern causation in intent and impact cases are deeply vulnerable to attribution mistakes that may occur as a result of unconscious stereotypes and cognitive biases that can distort the causal attribution judgments by legal fact finders. As others have written, unconscious biases and cognitive stereotypes account for much of modern day discrimination. Legal decision makers and fact finders not apt to detect these biases either in themselves or in others when evaluating discrimination claims. This article demonstrates how the same cognitive biases that give rise to discrimination in the society can also distort causal judgments about that discrimination. This danger is embedded in the evidentiary frameworks in both intent and impact cases, which allow the causal inquiry underlying discrimination claims to be determined by comparative reasoning exercises - i.e. explanations and analysis seeking to distinguish disparately treated and affected individuals and groups - that invite reliance on the very stereotypical categorization structures at the root of status discrimination. Many discrimination claims fail because courts are uneven at best, and often neglectful, in evaluating these explanations against existing antidiscrimination norms.

But there is a deeper vulnerability in the evidentiary structure of antidiscrimination law that is more destabilizing to the causal inquiry which lies at its center. That is the erosion of certain normative presumptions that underlie evidentiary structures in intent and impact cases. The Court has rooted its evidentiary frameworks in a set of normative assumptions about the existence, operation, and prevalence of status discrimination in our society. Based on these assumptions, the Court has aided plaintiffs in establishing an inference of discrimination (or status influence) by employing a counterfactual heuristic that imagines what decision making processes and outcomes would look like in a world free of discrimination and deems deviations from those processes and outcomes as evidence of discrimination in a particular case. However, despite the formal retention of these evidentiary structures over time, there has been steady erosion of the normative assumptions underlying them. The erosion of these presumptions has had a correspondingly devastating impact on the ability of plaintiffs to prove status discrimination especially given the increasing distance from the worst and most overt forms of discrimination, the increasing subtle and structural nature of discrimination, and the shift in public attitudes about the existence of status bias.

This analysis, then, calls into question the belief among civil rights advocates that survival of the disparate impact cause of action and the dismantling of the intent standard will preserve the civil rights gains of the past. While certainly these two steps would give the appearance of stemming the rollback of these gains, they would ultimately prove to be insufficient and unsatisfactory. Unless this understanding changes in the near future, courts will continue to be an inhospitable forum for discrimination victims and no amount of doctrinal reform will significantly alter the odds that the court will see the increasingly subtle and sophisticated nature of contemporary discrimination.

Suggested Citation

Foster, Sheila, Causation in Antidiscrimination Law: Beyond Intent Versus Impact. Houston Law Review, Vol. 41, No. 5, 2007, Fordham Law Legal Studies Research Paper No. 576941, Available at SSRN:

Sheila Foster (Contact Author)

Georgetown University ( email )

Washington, DC 20001
United States

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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