Discrimination Statutes, the Common Law, and Proximate Cause

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The Supreme Court has recently hinted that courts should use proximate cause in Title VII cases. This Article anticipates future judicial forays into this area and argues that proximate cause principles should not be imported into federal discrimination law. This inquiry dovetails into a broader conversation about the proper role of proximate cause in federal statutes, a subject which has produced a fractured jurisprudence.

Courts and commentators have often indicated that employment discrimination law is a tort. While this statement may be true, it is too general to provide guidance on whether to apply proximate cause. It ignores that both proximate cause and employment discrimination law change, depending on the particular context in which they are invoked. Proximate cause analysis is highly dependent on the underlying tort to which it is attached. None of the types of employment discrimination claims fit within any traditional tort and therefore do not align well with traditional articulations of proximate cause.

This Article will accomplish three tasks. First, it develops an architecture for determining when courts have the appropriate authority to import proximate cause into federal statutes. Second, it argues that Title VII already contains liability limiting principles that make the use of proximate cause both unnecessary and inappropriate. Finally, it demonstrates theoretical and practical problems with applying proximate cause in discrimination cases.