Leora F. Eisenstadt, Causation in Context, 36 Berkeley Journal of Employment and Labor Law 1 (2015). 

Causation in Context examines and critiques the Supreme Court’s January 2014 decision in Burrage v. United States and the false equivalency drawn between factual causation standards in criminal law and employment discrimination law. In nearly all of its opinions on factual causation, the Court has looked to the “ordinary meaning” of statutory language, cautioning, in some form or another, that “text may not be divorced from its context.” Nonetheless, the Court continues to do just that, applying linguistic meaning across statutes without consideration of its context, the type of statute in which the language is found, the policy goals at issue in its creation, and the overall functioning of causation in the relevant area of law. That was certainly the case in Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v. Nassar, the Court’s recent factual causation employment cases. In Burrage, however, the Court takes this acontextual approach one step further by drawing an equivalency between criminal law and employment discrimination that is not only illogical but also potentially detrimental to future employment discrimination jurisprudence.

This article draws on the existing scholarly critique of “but-for” causation in disparate treatment cases and argues that the Burrage Court’s false equivalency between criminal law and employment discrimination law is as damaging as the Court’s decisions in Gross and Nassar. Causation in Context examines the history of “but-for” causation in employment cases, explores the four major problems with the Burrage approach, and details the ways in which it is likely to negatively impact discrimination doctrine into the future.