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108 Va. L. Rev. Online 1 (2022)

handle is hein.journals/inbrf108 and id is 1 raw text is: COPYRIGHT © 2022 VIRGINIA LAW REVIEW ASSOCIATION VIRGINIA LAW REVIEW ONLINE VOLUME 108 JANUARY 2022 1-23 ESSAY NOT THE STANDARD YOU'RE LOOKING FOR: BUT-FOR CAUSATION IN ANTI-DISCRIMINATION LAW Guha Krishnamurthi * INTRODUCTION In the summer of 2020, the Supreme Court decided the blockbuster case Bostock v. Clayton County,' holding that Title VII prohibits employment discrimination on grounds of sexual orientation and gender identity.2 The opinion, authored by Justice Neil Gorsuch, claimed to base the result in textualism and the simple test of but-for causation.3 The three dissenters, in opinions by Justices Samuel Alito and Brett Kavanaugh, took an opposing view that the statute did not cover discrimination based on the employee's sexual orientation-but also claimed to ground their opinions in textualism.' This collection of conflicting opinions ignited a battle over the meaning of textualism and its relationship to conservative and liberal movements. Justice Alito wrote: * Associate Professor, University of Oklahoma College of Law. Thanks to Mitchell Berman, Ben Eidelson, Jonah Gelbach, Talia Gillis, Charanya Krishnaswami, Alex Platt, Shalev Roisman, Peter Salib, Will Thomas, and James Tierney for helpful discussions and comments. 1 140 S. Ct. 1731 (2020). 2 Id. at 1737. 3 Id. at 1738-39 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346 (2013)). 4 Id. at 1754-55 (Alito, J., dissenting); id. at 1823-25 (Kavanaugh, J., dissenting). 1

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