Excerpted From: Katie Eyer, The But-for Theory of Anti-Discrimination Law, 107 Virginia Law Review 1621 (December, 2021) (406 Footnotes) (Full Document)


KatieEyerDiscrimination law has long been in theoretical crisis. Because its core theory--disparate treatment--was recognized at a time when “disparate treatment” and “intentional discrimination” were believed to be one and the same, anti-discrimination law's foundational cases conflate the two. This has created a fundamental question as to disparate treatment law's central theoretical principles. Does disparate treatment law in fact prohibit all “disparate treatment,” (i.e., all decisions in which the outcome would have been different “but for” race, sex, or other protected class status)? Or does it prohibit only the narrower category of “intentional discrimination” (i.e., decisions in which protected class status played a conscious role)?

These questions about anti-discrimination law's core principles remain unanswered even today, with important adverse consequences for anti-discrimination law. In the absence of a clear commitment to barring “disparate treatment,” judicial law-making has run amok. Few judges even ask the question of whether a policy decision--or an employment action--would have turned out differently had the individual or group affected been white, male, or of a majority religion. Instead, across both constitutional and statutory law, convoluted doctrines result in the dismissal of the majority of anti-discrimination claims, whether or not “disparate treatment” (in the literal sense) has in fact occurred.

This Article suggests that the time has come to address this theoretical crisis, and recenter anti-discrimination doctrine around what ought to be its core principles. As the very name of the doctrine suggests, “disparate treatment” law is supposed to be centrally concerned with differential treatment. This simple principle--that all groups and individuals have a right to receive the same treatment at the hands of government, employers, and others, regardless of race, sex, or other protected class status--is central to what anti-discrimination law is supposed to do. If our “anti-discrimination” principles regularly absolve defendants of liability where groups or individuals in fact would have been treated better if they were white, or men, or non-disabled, then anti-discrimination law is not worthy of its name.

While addressing anti-discrimination law's theoretical crisis has long been urgent, it has recently become far more plausible. Across a series of recent cases, the Supreme Court has articulated the view that anti-discrimination's law's central defining principle is what I refer to in this Article as the “but-for principle.” Thus, the Court has embraced the view that where the outcome would be different “but for” the protected class status of those affected, anti-discrimination law is violated. This is of course simply another way of saying that disparate treatment (in its literal, not technical, sense) is proscribed. As such, the Court's recent cases offer renewed opportunities to suggest that anti-discrimination law must be centered on a true “disparate treatment” theory, which would mandate liability wherever differential treatment occurs (i.e., wherever the outcome would be different “but for” protected class status).

Importantly, the Court has situated its reasoning in these cases as founded on the “plain meaning” of anti-discrimination law's statutory text. As such, they offer an unusual opportunity to argue that a true disparate treatment principle not only resides at the core of anti-discrimination law but also in its plain textual meaning. In a Supreme Court where textualism is the ascendant method of statutory interpretation, this makes it uniquely plausible to claim that a commitment to proscribing all actual differential treatment is not only the preferred theory of disparate treatment law but (at least for statutory anti-discrimination law) the textually mandated one. And because disparate treatment doctrine has typically been construed comparably across the constitutional and statutory domains, such a move could have profound impacts in the constitutional domain as well. As such, the current moment offers unique opportunities for resolving the theoretical crisis at the heart of anti-discrimination law and for addressing the many doctrinal pathologies that have arisen out of it.

Ironically, if there is one major obstacle to harnessing this recent turn in the Supreme Court's case law toward a true disparate treatment paradigm, it may be those who are, in theory, most committed to building a meaningful body of anti-discrimination law. Many anti-discrimination scholars and advocates have critiqued the but-for principle--and indeed at times disparate treatment law in general--perceiving it as a weak substitute for preferred theories of anti-discrimination law, such as disparate impact and motivating factor liability. This longstanding opposition to the but-for principle may make anti-discrimination scholars and advocates reluctant to draw on these cases and accompanying theoretical principles, regardless of their potential.

But this Article suggests that the increased risks of embracing the but-for principle are slight--and that the opportunity costs of not doing so are considerable. The opportunity to recenter disparate treatment law around what should be its core theoretical commitment is not one we ought to take lightly. Without such a core theoretical commitment, we can expect to continue to see an anti-discrimination law without any central rudder, overrun by judge-made doctrines, and highly susceptible to individual judicial biases. Punitive or harmful government policies that would not have been adopted “but for” the (minority) race of those affected will continue to proliferate and go unremedied. Employment decisions that treat women, minorities and members of the LGBTQ community more harshly than those who are men, white, cisgender and straight will continue to be evaluated--and often dismissed-- under a network of doctrines that bear little relationship to whether differential treatment occurred.

In contrast, an embrace of the but-for principle--and centering it as anti-discrimination law's core commitment--offers myriad concrete opportunities to argue for a more sensible and elegant approach to anti-discrimination law. Under the but-for principle, our foundational inquiry ought to be a simple and factual one: would the outcome have been different “but for” the race, sex, or other protected class status of those adversely affected? While in many cases answering this factual question may be difficult--just as it is in, for example, tort claims--the procedure for doing so is straightforward. The fact finder (jury or judge) ought to consider all of the relevant evidence and consider whether it appears, by a preponderance of the evidence, that a different outcome would have resulted had the protected class status of those affected been different. For example, would the Voter ID law have been passed, if those it had been likely to disenfranchise were overwhelmingly white? Or would a man have been assumed to be uncommitted to work--and thus denied a promotion--simply because he had small kids?

Centering this approach has the potential to address many of the pathologies that currently plague both statutory and constitutional anti-discrimination law. The search for a particular individual bad actor (or actors) becomes far less relevant if the but-for principle is the central defining principle of disparate treatment doctrine since the question can be asked without defining the precise role of particular individuals in producing the discriminatory action. So too, the search for a strong form of self-aware conscious intent should not be dispositive if our central focus is on whether the outcome would have been different “but for” the protected class of those affected. Self-aware intent certainly may be helpful in proving “but for” causation, but it is only one of many ways that but-for causation can be shown. Finally, widespread recognition of the but-for principle as the central defining feature of disparate treatment doctrine would provide an opportunity to address the myriad technical doctrines that currently result in the dismissal of numerous statutory anti-discrimination claims, without ever asking the core question of whether discrimination took place.

In addition to providing the opportunity to address many of anti-discrimination law's pathologies, the but-for principle could also provide a stronger foundation for many of anti-discrimination law's equality-promoting doctrines and scholarly ideas. As the case of Bostock v. Clayton County demonstrates, the stereotyping principle--long critiqued by some for its lack of statutory foundation be situated comfortably within the but-for principle, offering it renewed vigor and promise. Similarly, the theory of “negligent discrimination”--long argued for by some anti-discrimination scholars largely unnecessary under a but-for discrimination regime. A true but-for standard would also effectuate many--though certainly not all--goals of other equality-promoting doctrines, such as motivating factor and disparate impact.

As such, there are many potential benefits to embracing the but-for principle as the theoretical core of disparate treatment doctrine and relatively few genuine drawbacks. Indeed, many of the sources of opposition have rested on misconceptions about what “but for” demands or permits (including, for example, misconceptions that a but-for standard effectively requires a showing that protected class status was the sole cause of the defendant's actions). Other sources of opposition have rested on fears that the but-for principle (or other anti-classificationist approaches) would endanger minority-protective doctrines such as affirmative action. But as this Article demonstrates, much of what anti-discrimination scholars and advocates hope to accomplish through alternatives to the but-for principle can be achieved through the embrace of the principle--and much of what they hope to avoid has already come to pass.

The time has come to resolve the theoretical crisis in anti-discrimination law. This Article takes up that work. The Parts that follow describe the theoretical crisis at the heart of anti-discrimination law, develop arguments for how it may be resolved, and suggest what the benefits of such a resolution might be. But before proceeding to this substantive discussion, it is important to note the role of terminology in both generating--and ultimately solving-- anti-discrimination law's theoretical crisis. For too long we have conflated two concepts--“disparate treatment” and “intentional discrimination”--and we ought not to do so going forward. Thus, in this Article, when I use the term “disparate treatment,” I mean a true disparate treatment standard--that the outcome would have been different “but for” the protected class of those affected. When I refer to “intentional discrimination,” I mean to describe the narrower class of disparate treatment that is perpetrated with discriminatory intent. Both of these standards are distinct from a “disparate impact” standard, which asks whether the burdens of a policy or practice fall more heavily on a particular group, but in a context where disparate treatment need not be present.

The remainder of this Article proceeds as follows. Part I makes the case that anti-discrimination law is in conceptual crisis, describes the origins of this crisis, and details the ways that this theoretical crisis has led to serious pathologies in contemporary anti-discrimination law. Part II turns to the set of recent cases in which the Supreme Court has described the but-for principle--a true disparate treatment principle--as the central defining feature of anti-discrimination law and describes the potential of such cases for resolving anti-discrimination law's theoretical crisis. Part III illustrates what a factual, but-for-centered inquiry might look like in an individual case and describes the radical systematic potential of arguing that this simple factual inquiry must control. Part IV describes how many of the objectives of the equality-promoting doctrines that anti-discrimination scholars and advocates have favored can be effectuated by turning to a true disparate treatment inquiry, via the but-for principle. Finally, Part V addresses likely headwinds to a project of recentering anti-discrimination law around the but-for principle, including potential progressive objections to such a project, potential legal obstacles, and judicial attitudes that may pose a barrier to reform.

[. . .]

Millions of Americans believe that if they are treated differently based on their race, their sex, their religion, their disability, their LGBTQ status, their age, or their national origin, the law affords them a remedy. But for those who experience discrimination today, it is far from clear that this belief will be honored. The theoretical crisis in anti-discrimination law means that it remains uncertain whether a true disparate treatment principle governs anti-discrimination law in the first instance. And most courts do not even try to ask this important factual question, instead relying on technical doctrines to dismiss claims.

Today, we have a rare opportunity to return anti-discrimination law to what should be it its core principles: the idea that no person ought to be treated differently based on their race, sex, or other protected class status. The Supreme Court has held that a true disparate treatment principle-- the but-for principle--resides at the core of anti-discrimination law. Moreover, it has made clear that this principle controls as a matter of anti-discrimination law's plain text. This set of holdings affords myriad opportunities to argue--in both the statutory and constitutional contexts--that all disparate treatment must be proscribed.

While this objective may seem modest, in today's legal landscape it is not. If all disparate treatment is proscribed, then it is illegitimate for courts to dismiss cases based on technical legal barriers like the McDonnell Douglas paradigm, the “same actor” rule, or rigid comparator requirements. If all disparate treatment is proscribed, then the courts ought not demand individualized evidence of self-aware intent to discriminate (though such evidence may certainly still be useful to show disparate treatment). If all disparate treatment is proscribed, then doctrines that routinely immunize certain actors from being held responsible for their discriminatory acts should be found illegitimate.

The but-for principle thus offers innumerable opportunities to challenge the anti-plaintiff structures of anti-discrimination law today. Simply by insisting that our commitment to prohibiting disparate treatment must be honored, we can dismantle the biased architecture of modern anti-discrimination law. But this important opportunity is not self-executing: it will take a movement for “but for” to see its full effects. Thus, whether anti-discrimination advocates and scholars embrace the but-for principle--or fail to do so--may determine the future of anti-discrimination law.

This Article was presented at the 15th Annual Colloquium on Labor and Employment Law (“COSELL”) and at the Association of American Law Schools 2021 Meeting.