Logical causation, Disparate treatment, Title VII
Sturm College of Law
This Article proposes a new approach to both prohibition and compensation. On the prohibition side, it proposes penalties and incentives that are unrelated to compensation. This approach will make clear that discriminatory conduct is prohibited irrespective of its effect on plaintiffs and ensure that such conduct is adequately deterred. On the compensation side, this Article proposes a new causal standard: a “necessity-or-sufficiency” test, along with a comparative fault approach to determine what level of compensation is due. While these proposals may seem radical in the context of disparate treatment law, they are widely accepted in modern tort law—the field from which disparate treatment law has borrowed much of its thinking on causation (albeit in an often piecemeal and unselfconscious way). Thus, in the larger scheme of things, my proposals are hardly radical; they are nothing more than a suggestion that disparate treatment law should adopt some of the parts of tort law it seems to have left behind in its partial borrowing of causal concepts. The Article proceeds in four parts. Part I develops a comprehensive framework of potential causal concepts based on the literature of logical causation. Part II applies this framework to the current debate over the appropriate standard of causation in disparate treatment law, providing, for the first time, a meaningful understanding of the multitude of formulations used in that debate and the causal structure of that debate. Part III critiques the two leading causal standards in the current debate—the “motivating factor” standard and the “but for” standard—demonstrating that both standards are flawed, and that the 1991 Act’s attempt to combine these two flawed standards is also flawed. Part IV then proposes a series of reforms to disparate treatment law to address the flaws in these two standards. In so doing, it underscores that the current statutory framework is fundamentally flawed, and that only Congress can fix these problems.
Martin J. Katz, The Fundamental Incoherence of Title VII: Making Sense of Causation in Disparate Treatment Law, 94 GEO. L. J. 489 (2006).
Originally published as Martin J. Katz, The Fundamental Incoherence of Title VII: Making Sense of Causation in Disparate Treatment Law, 94 GEO. L. J. 489 (2006).
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