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ARTICLE · 26 JUNE 2020

But-For Causation Under Bostock

Ogletree, Deakins, Nash, Smoak & Stewart
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The recent Bostock v. Clayton County, Georgia decision, in which the Supreme Court of the United States ruled that an employer that fires an individual...

United StatesEmployment and HR
Kelly S. Hughes
Kelly S. Hughes
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The recent Bostock v. Clayton County, Georgia decision, in which the Supreme Court of the United States ruled that an employer that fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964, has received a tremendous amount of attention. The Court's decision has broad implications for employers and their employment counsel. Justice Neil Gorsuch's majority opinion devotes much space to a discussion of the "but-for" causation standard.

Background on 'But-For' Causation

Section 2000e-2(a)(1) of Title VII states that employers may not "fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." (Emphasis added.) Confusion arose in federal district and appellate courts regarding the term "because of" and the

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