Tuesday, June 16, 2020
In Bostock and its companion cases, the Supreme Court held that Title VII prohibits discrimination because of gender identity and sexual orientation. The case is worth reading for a number of reasons, but there is a surprising reason to read it: causation.
The Bostock opinion extensively discussed what “but for” cause means.
In the majority opinion, Justice Gorsuch noted that “but for” cause is sweeping. He emphasized that there can be more than one “but for” cause of an outcome. The majority opinion noted that there are “often” multiple, “but for” causes. Justice Gorsuch reiterated that “but for” cause does not mean sole cause. Even more importantly, Justice Gorsuch noted that a “but for” cause does not even need to be the primary cause.
The majority cited Burrage v. U.S., 571 U.S. 204 (2014). Even though Burrage is not a discrimination case, it is a must read for all discrimination practitioners because of its discussion of causation.
Bostock clarified much of the uncertainty about the “but for” standard lingering from this term’s Comcast opinion and prior cases such as Gross and Nassar. Bostock’s discussion of “but for” cause is especially surprising because the underlying case was a Title VII discrimination case. Title VII discrimination cases do not require the plaintiff to establish “but for” cause. Instead, the plaintiff may prevail under a motivating factor causal standard.
The Bostock opinion is available here: https://d2qwohl8lx5mh1.cloudfront.net/8hVHe52Cq4sPdF0wEaTaCQ/content