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