Document Type

Article

Publication Date

2-21-2018

Keywords

Causal relationships, Mixed motives

Organizational Units

Sturm College of Law

Abstract

To say that the law of causation in mixed motives cases is a mess would be an understatement, as Andrew Verstein highlights in his article, The Jurisprudence of Mixed Motives. Most antidiscrimination laws require causation. That is, these laws proscribe adverse employment actions when they occur “because of” a protected characteristic, such as race or sex. The problem is that there are several types of causation, particularly where multiple motives are involved – which is almost always. Yet, few of those statutes specify what type of causation is required. Other statutes specify what type of causation is required, but with no clear definition (e.g., “motivating factor” causation, referenced in the Civil Rights Act of 1991). To make matters worse, courts and commentators often throw other undefined or ill-defined terms into the mix. And if we were inclined to look at other legal fields, such as tort law or constitutional law, in order to make sense of causation in employment discrimination law, we tend to encounter yet more ill-defined terms.

Publication Statement

Originally published as Martin J. Katz, Making Sense of Causation in Mixed Motives Cases, JOTWELL (February 21, 2018), https://worklaw.jotwell.com/making-sense-causation-mixed-motives-cases/ (reviewing Andrew Verstein, The Jurisprudence of Mixed Motives, 127 YALE L.J. 1106 (2018)). Copyright is held by the author. User is responsible for all copyright compliance.



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