Tuesday, June 16, 2020

Bostock and Causation

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

Sandra Sperino


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What changes to causation standards do you think Bostock requires?

Posted by: Jillian Weiss | Jun 16, 2020 6:11:51 PM

Two collateral outcomes of this case should be (1) the death of the “bisexual or equal opportunity harasser/discriminator” defense that has plagued employment discrimination cases and (2) the perverse sexual stereotype that “boys will be boys” and they can tough it out, so what should be found to be same-sex harassment isn’t determined to be actionable.

With respect to #1, it’s good to see that Judge Bork, Judge (later Justice) Scalia, and Judge Starr were correct in their 1985 Meritor Savings Bank v. Vinson dissent that protecting the bisexual harasser would be a bizarre result.

Posted by: Christine Duffy | Jun 17, 2020 9:20:45 AM

Jillian, I think Bostock provides clarity on "but for" cause, rather than a change. There had been some opinions by other courts that suggested "but for" cause was onerous or that it did not allow for multiple causes.

Posted by: Sandra Sperino | Jun 17, 2020 11:07:35 AM

Here is how I explained the effect of the decision to a court considering a motion for summary judgment. I recognize that people may differ with my take. https://bit.ly/2Bad2aP

Posted by: Jillian Weiss | Jun 25, 2020 1:03:30 PM

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