Wednesday, February 27, 2013

Clarke on Causal Coherence In Disparate Treatment Doctrine

ClarkeBrian Clarke (Charlotte) has posted on SSRN his forthcoming piece in the Rutgers Law Review entitled: "A Better Route Through The Swamp: Causal Coherence In Disparate Treatment Doctrine."

Here is the abstract:

Disparate treatment doctrine has long been a swamp and it is getting deeper and murkier. The various judicially and legislatively created routes through the swamp – proof schemes – are poorly marked and, at best, imperfect. Critically, the routes through the swamp have become unmoored from the critical cause-in-fact inquiry they were ostensibly designed to illuminate.

Disparate treatment doctrine has long been a swamp and it is getting deeper and murkier. The various judicially and legislatively created routes through the swamp – proof schemes – are poorly marked and, at best, imperfect. Critically, the routes through the swamp have become unmoored from the critical cause-in-fact inquiry they were ostensibly designed to illuminate.

Focusing on cause-in-fact, this article seeks to establish causal coherence in disparate treatment doctrine by applying – for the first time – modern cause-in-fact theory, including the necessary element of a sufficient causal-set (“NESS”) standard articulated in the Restatement (Third) of Torts, across the various individual disparate treatment statutes and theories. In order to implement this new-found causal coherence, this article proposes a better route through the swamp in the form of a unified proof scheme for use in all individual disparate treatment cases regardless of statute or theory that is rooted in this conception of causal necessity based on the ubiquitous McDonnell Douglas proof scheme.

As Brian himself points out, there could hardly be a more relevant topic these days in employment discrimination law.  The issue of cause-in-fact in disparate treatment is again before the Supreme Court in UTSWMC v Nassar.  Brian's pieces touches on some of the broader issues that the Court should be looking at in Nassar – instead of just throwing around terms like “but for causation” without any conception of what that really means.

Check it out!

PS

http://lawprofessors.typepad.com/laborprof_blog/2013/02/clarke-on-causal-coherence-in-disparate-treatment-doctrine.html

Employment Discrimination, Scholarship | Permalink

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