The year 2011 marked the birth of a new idea. The United States Supreme Court decided Staub v Proctor Hospital and for the first time invoked common law proximate cause in the context of federal employment discrimination law. It is rare in jurisprudence to be present at the birth of an idea and then see that idea develop over its first decade. This Article charts the emerging proximate cause doctrine from its early days as a baby doctrine. Now, the doctrine is pre-adolescent, with all of the changes and turmoil that phase entails. Charting the first decade of this new doctrine is important because factual cause doctrine is a central battleground of discrimination jurisprudence. In a string of cases starting in 2009, the Supreme Court tightened the factual cause standard for some discrimination and retaliation claims. The majority opinion in Bostock v Clayton County relied heavily on a factual cause analysis when deciding that Title VII prohibits discrimination because of sexual orientation and gender identity. When the Supreme Court first invoked proximate (legal) cause in 2011, it was unclear how proximate cause jurisprudence would develop in discrimination cases and whether proximate cause would become a prominent element in discrimination cases. This Article reviews all of the discrimination cases invoking proximate cause over the last decade and exposes the chaotic, emerging statutory proximate cause doctrine.
Sandra F Sperino, The Emerging Statutory Proximate Cause Doctrine, 99 Nebraska Law Review 285 (2020).