Discrimination Statutes, The Common Law, and Proximate Cause

The Supreme Court recently interpreted causal language in the Uniformed Services Employment and Reemployment Rights Act (USERRA) to include the common-law concept of proximate cause. This Article anticipates that courts will incorporate proximate cause more broadly into the primary federal discrimination statutes and argues that courts should not interpret the statutes in this way. The Article demonstrates the theoretical and practical difficulties of importing proximate cause principles into employment discrimination law. The Article demonstrates how only weak textual, intent, or purpose-based arguments support courts’ use of proximate cause in Title VII. Many of these arguments are premised on the idea that the federal discrimination statutes are torts. This Article challenges this assumption and argues that describing a cause of action as a tort does not provide any meaningful guidance about whether to import proximate cause. Proximate cause is a notoriously flexible and theoretically inconsistent concept. Proximate cause has no independent descriptive power and is highly dependent on the underlying tort to which it is attached. Employment discrimination claims do not fit within any traditional tort and therefore do not align well with traditional articulations of proximate cause.When courts import proximate cause, they are not simply importing a concept from the common law, but rather are engaging in an unguided policy choice—a choice that will allow courts to further limit the reach of federal discrimination law. Importantly, the federal discrimination statutes already contain express limits on liability that eliminate or severely constrain the space available for courts to import and define proximate cause

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