Before we dive into the causation trilogy cases, it is worthwhile to place them in historical context. This historical context is important because it illustrates why some of the current confusion in causation doctrine exists.
Two early Supreme Court began to lay the framework for current discrimination doctrine. In 1971, the Supreme Court decided Griggs v. Duke Power Co., 401 U.S. 424 (1971). Two years later, the Court decided McDonnell Douglas v. Green, the next major case to explain the core protections of Title VII. 411 U.S. 792 (1973).
Importantly, the Supreme Court decided both of these cases prior to the time when textualism became a primary vehicle for interpreting statutes. This is significant for the causation question because the modern cases tend to make textualist claims, by arguing that the words “because of” mean causation. Although both Griggs and McDonnell Douglas start to discuss the connection an employee must prove between adverse consequences and a protected trait, these cases do not do so in an explicitly textualist way. This makes it difficult to mesh these cases with later cases that claim that a certain word has a fixed meaning.
Further, neither of these cases frames the underlying inquiry as being connected to an existing legal notion of cause. In other words, neither of these cases borrows tort ideas of causation. When modern courts look to tort causation principles, it is often difficult to integrate both the letter and spirit of Griggs and McDonnell Douglas into these different notions of causation.
This post will focus on Griggs and its implications for causation doctrine. In a later post, I will discuss McDonnell Douglas.
In Griggs, the Court recognized a disparate impact theory under Title VII. When doing so, the Court stated that it was determining the plain meaning of the statute. However, the Court did not determine the plain meaning of the statute by looking up the meaning of the words “because of” in a dictionary. Rather, the Court stated:
The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices.
Griggs, 401 U.S. at 429-430. The Court further reasoned that an employer could not use tests or job criteria that produced a disparate impact based on a protected trait unless those tests and criteria were demanded by business necessity.
Note how this reasoning is very different than what occurs in the causation trilogy. First, the Court does not explicitly connect the words of the statute to an existing definition of cause. Second, when the Court discusses the plain meaning of the statute, the Court claims that it finds this plain meaning by looking at the goals of Title VII. Third, the Court roughs out the beginning of a disparate impact claim, and the causal connection the Court develops is not an existing “but for” cause or motivating factor standard.