Tort and Social Equality Speakers Series: Dembroff & Kohler-Hausmann

The Tort and Social Equality Speakers Series is back for the fall semester:

Robin Dembroff & Issa Kohler-Hausmann

September 20, 2024, 12:00 p.m. EST

*This is a hybrid talk will take place in person at the University of Toronto Centre for Ethics (15 Devonshire Place), with a synchronous broadcast on Youtube (link here)

 

“But-for What? When Anti-Discrimination Law Tried to Borrow from Tort Law and Missed Something”

Courts and commentators often define discrimination in causal terms. Moreover, they often claim that the causal definition of discrimination is tracks role that causality plays establishing liability in tort law. But such articulations often trade between two different articulations of the causal showing required for a discrimination claim. In one articulation the claimant must show that the outcome would not have happened but for the discriminatory act or policy; in the other articulation the claimant must show that the outcome would not have happened but for their “protected status”—e.g., race, sex, religion. In this talk, we explain that the only the first showing is consistent with the role causation plays in tort law where the inquiry into causation is structured by a prior independent theory of duty which limits the range of counterfactuals relevant to the case. However, the Supreme Court and many legal scholars have insisted that the second articulation is the relevant causal showing in antidiscrimination and equal protection law: “but-for” the claimant’s racial, sex, religious, etc. status. We show that this so-called but-for test cannot define what counts as discrimination because it is inherently indeterminate. One cannot set up the counterfactual thought experiment without more specificity about the relevant counterfactual contrasts, and one cannot choose which counterfactual contrasts are relevant without a prior normative theory of how the defendant ought to have behaved vis-a-viz the claimant’s (e.g.) sex or racial status. This last part requires a theory of what people are owed in various domains (e.g., employment, contracts, etc.) given the social meanings and relations that constitute sex or race in our society.