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10.3 Civil Rights—Title VII—Disparate Treatment— “Because of” Defined

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10.3 Civil Rights—Title VII—Disparate Treatment— “Because of” Defined

       “Because of” means “by reason of” or “on account of.”  This is sometimes referred to as “but-for causation.”  This form of causation is shown whenever a particular outcome would not have happened “but for” the purported cause.  It is a reason without which the [state adverse employment action] would not have occurred.

A but-for test directs us to change one thing at a time and see if the outcome changes.  If it does, we have found a “but-for cause.”  Often, events have multiple but-for causes.  For example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a “but-for cause” of the collision.

In the context of this claim, a defendant cannot avoid liability just by citing some other factor that contributed to the challenged employment decision.  So long as the plaintiff’s [race] [color] [religion] [sex] [national origin] was one but-for cause of that decision, that is enough to trigger the law.  A “but-for cause” does not mean the sole cause or even a primary cause. 


See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739 (2020) (explaining “because of” and but-for causation in context of claim under Title VII).

Revised Mar. 2022