The Fundamental Incoherence of Title Vii: Making Sense of Causation in Disparate Treatment Law

Abstract

Suppose that an employer fires an employee for two reasons: because the employee is a woman and because she is habitually tardy. In such a "mixed motive" case, can we say that the employee was fired "because of" her sex, as required by most anti-discrimination laws?

The answer depends on what type of causation the law requires. But Congress has not specified what type of causation is required. Title VII of the Civil Rights Act of 1964 provides no guidance on this issue. Nor do most of the disparate treatment statutes passed since that time. And while Congress had the opportunity to answer this question definitively in the Civil Rights Act of 1991, it failed to do so coherently. As a result, courts have struggled to find an appropriate standard of causation, generating a thicket of vague, undefined, and often-conflicting tests and formulations.

This Article cuts through that thicket, providing a comprehensive framework of potential causal concepts based on the literature of logical causation. Armed with this framework, this Article demonstrates that the law's current approach to causation is fundamentally flawed in two critical respects: First, current doctrine is ineffective at prohibiting discriminatory decision-making. Second, current doctrine is one-sided in its approach to compensation, favoring defendants over plaintiffs - even when the defendant has engaged in blameworthy conduct and the plaintiff is blameless. This Article concludes by proposing a series of reforms, including a new standard of causation (a "necessity-or-sufficiency" test) similar to the substantial factor test in tort law, and a comparative fault rule for determining compensatory damages.

Keywords: discrimination, Title VII, Civil Rights Act of 1991, disparate treatment, civil rights, race, sex, gender, causation, employment

JEL Classification: J00, J70, J71, J79, J79, K40, K42