Causation, Part 5 (How History is Important Now)

In prior posts, I explored how two seminal discrimination cases (Griggs and McDonnell Douglas) approached causation. Importantly, neither case took a narrow, textual view. In neither case did the Court purport to look up the meaning up “because of” and magically reach an understanding about causation and discrimination law. Neither case explicitly relied on “but for” cause.

These two cases defined the core contours of Title VII litigation. Until the late 1980s, they were the Court’s major pronouncements about causation under Title VII. As I will discuss in future posts, recent cases have made a radical turn away from these early views of causation. This leads to major disconnects and questions in the underlying doctrine. And, as we will explore, the “elements” of a discrimination claim become increasingly complex as the Court jettisons (at least in part) these early cases.

Litigants arguing about causation questions in current cases should not forget this early history. In too many cases, courts exploring causation begin discussing cases from the late 1980s, like Price Waterhouse. But, the causation conversation started much earlier with Griggs and McDonnell Douglas, even if these cases are not traditionally described as being about causation.  Those advocating for legislative responses to Nassar and Gross can also use these early cases to show how recent Supreme Court cases ignore important parts of the historical development of Title VII and how courts and litigants first understood causation.

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