Discrimination law has long been in theoretical crisis. Its central theory – disparate treatment law – has no agreed-upon core principles. Because prevailing theories of discrimination once treated ‘disparate treatment’ and ‘discriminatory intent’ as coextensive – something we now know not to be true – it is unclear whether all ‘disparate treatment’ is truly proscribed. In the absence of a clear commitment to proscribing all disparate treatment, judicial law-making has run amok. The result has been the development of a network of technical rules that that have all but eclipsed the factual question of whether discrimination took place – and that have been devastating to discrimination plaintiffs’ success.
This Article contends that the time has come to resolve the theoretical crisis in anti-discrimination law. In a series of recent cases, the Supreme Court has situated the question of whether an individual or group would have fared differently ‘but for’ their protected class status as the central defining question of anti-discrimination law. Moreover, the Court has suggested that this inquiry flows from anti-discrimination law’s plain text. As such, there are compelling arguments to be made that a true disparate treatment principle – the but-for principle – is the textually mandated inquiry in anti-discrimination law, and that judicial deviations from this standard are illegitimate.
This idea – that our anti-discrimination laws must reach all contexts where the outcome would be different ‘but for’ the sex, race, or other protected class status of those affected – is simultaneously conservative in its aspirations, and potentially radical in its legal effects. Such an approach comports with our often-stated commitment that all individuals in our society be given equal opportunities, and not be judged on the basis of their race, sex, religion, or other protected class status. But anti-discrimination law has strayed far from these anti-disparate treatment principles – and thus taking such a commitment seriously would have radical effects. This Article thus suggests that reorienting our inquiry around the factual question of whether the outcome would be different ‘but for’ protected class status is important to ensuring that anti-discrimination law can achieve its basic promises.
Eyer, Katie R, The But-For Theory of Anti-Discrimination Law (March 10, 2021). Virginia Law Review, forthcoming.