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The Gross Confusion Deep In The Heart Of Univ. Of Texas S.W. Med. Center V. Nassar, Brian S. Clarke
The Gross Confusion Deep In The Heart Of Univ. Of Texas S.W. Med. Center V. Nassar, Brian S. Clarke
Brian S. Clarke
This essay addresses a fundamental issue underlying the Supreme Court’s consideration of Univ. of Texas S.W. Med. Center v. Nassar, namely the parameters of the factual causation standard applicable in disparate treatment cases. This essay also addresses a previously unrecognized area of agreement between the plurality and dissent in Price Waterhouse v. Hopkins that can resolve the factual causation issue underlying Nassar.
The Court’s most recent pronouncement on this issue, in Gross v. FBL Financial Services, has led to confusion as defendants and courts have interpreted Gross to require sole factual causation for the plaintiff to prevail. Yet, sole causation …
A Better Route Through The Swamp: Causal Coherence In Disparate Treatment Doctrine, Brian S. Clarke
A Better Route Through The Swamp: Causal Coherence In Disparate Treatment Doctrine, Brian S. Clarke
Brian S. Clarke
Disparate treatment doctrine has long been a swamp and it is getting deeper and murkier. The various judicially and legislatively created routes through the swamp – proof schemes – are poorly marked and at, best, imperfect. Critically, the routes through the swamp have become unmoored from the critical cause-in-fact inquiry they were ostensibly designed to illuminate.
Focusing first on cause-in-fact, this article seeks to establish causal coherence in disparate treatment doctrine by applying – for the first time – modern cause-in-fact theory, including the necessary element of a sufficient causal-set (“NESS”) standard articulated in the Restatement (Third) of Torts, across …