The talk will be a hybrid talk, taking place in person at the University of Toronto Centre for Ethics (15 Devonshire Place), with a synchronous broadcast on Youtube: https://www.youtube.com/live/FbP8fecnE-E.
Courts and commentators often define discrimination in causal terms. Moreover, they often claim that the causal definition of discrimination tracks the role that causality plays establishing liability in tort law. But such articulations often trade between two different articulations of the causal showing required for a discrimination claim. In one articulation the claimant must show that the outcome would not have happened but for the discriminatory act or policy; in the other articulation the claimant must show that the outcome would not have happened but for their ‘protected status’ – eg, race, sex, religion. In this talk, we explain that the only the first showing is consistent with the role causation plays in tort law where the inquiry into causation is structured by a prior independent theory of duty which limits the range of counterfactuals relevant to the case. However, the Supreme Court and many legal scholars have insisted that the second articulation is the relevant causal showing in antidiscrimination and equal protection law: ‘but-for’ the claimant’s racial, sex, religious, etc. status. We show that this so-called but-for test cannot define what counts as discrimination because it is inherently indeterminate. One cannot set up the counterfactual thought experiment without more specificity about the relevant counterfactual contrasts, and one cannot choose which counterfactual contrasts are relevant without a prior normative theory of how the defendant ought to have behaved vis-a-viz the claimant’s (eg) sex or racial status. This last part requires a theory of what people are owed in various domains (e.g., employment, contracts, etc.) given the social meanings and relations that constitute sex or race in our society.
Robin Dembroff is an associate professor in the philosophy department at Yale University. Dembroff works on feminist and LGBTQ philosophy, with a focus on what gender is and how it shapes social outcomes, experiences, and ways of knowing. Their current book project, Real Men on Top: How Patriarchy Weaponizes Gender, is under contract with Oxford University Press. Dembroff’s work has been published in professional journals spanning four disciplines, and appears in popular venues including Scientific American, The Boston Review, TIME, The Guardian, and The New York Review of Books. In 2019, Dembroff co-authored an amicus brief in support of gay and transgender employees with Issa Kohler-Hausmann, which was submitted to the United States Supreme Court on behalf of over seventy philosophy professors. They have given over a dozen keynotes and named lectures, and have been featured on several podcasts including Slate’s Hear Me Out and Hi-Phi Nation. In 2022, Britannica named Dembroff one of twenty ‘shapers of the future’ under 40 in academia and ideas.
Issa Kohler-Hausmann is Professor of Law and Sociology at Yale University. Born and raised in Milwaukee, she holds a PhD from New York University in sociology, a JD from Yale Law School, and a MA from University of Wisconsin-Madison. Her book Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing is a mixed method study of misdemeanor courts in the age of Broken Windows policing in New York City. Her current work is about social kinds and causation, with a particular focus on the methodological and theoretical issues entailed in stating and proving discrimination claims. Admitted to practice in New York State, Eastern and Southern Districts of New York, and the Western District of Wisconsin, Kohler-Hausmann maintains an active pro bono legal practice, currently with a concentration in parole release for persons serving life sentences for crimes committed as juveniles.
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