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

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. 

Comment 

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