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95 S. Cal. L. Rev. 785 (2021-2022)
Dimensional Disparate Treatment

handle is hein.journals/scal95 and id is 839 raw text is: DIMENSIONAL DISPARATE TREATMENT BENJAMIN EIDELSON* ABSTRACT The Supreme Court's decision in Bostock v. Clayton County was an important victory for gay and transgender workers-but the Court's textual analysis has failed to persuade a number of thoughtful commentators, and it threatens to leave anti-discrimination law in disarray. The root of the problem is that Bostock trumpeted a simple test of but-for causation that could not alone explain the correctness of the results that the Court reached. This explanatory gap not only has left Bostock' holding vulnerable to attack, but also has engendered uncertainty about the many disparate- treatment issues for which Bostock now provides the governing precedent. Indeed, because Bostock took it upon itself to interpret Title VII from textualist first principles, its analysis will orient-and perhaps disorient- judicial approaches to all manner of disparate-treatment claims for many years to come. What disparate-treatment law needs, but the Court has thus far failed to provide, is a coherent, general, and textually grounded account of what it means for a decision to be made because of a protected characteristic- one that accords with Bostock's motivating intuitions, but that transcends its overly simplistic account of its own reasoning. Drawing on a venerable body of work in analytic philosophy concerning determinable properties and their corresponding determinates, this Article develops an account that * Assistant Professor of Law, Harvard Law School. For helpful comments and discussion, I thank Larry Alexander, Erin Beeghly, Mitchell Berman, Jessica Clarke, Richard Fallon, Sherif Girgis, John Goldberg, Deborah Hellman, Adam Hosein, Max Kistler, Michael Klarman, Issa Kohler-Hausmann, Andrew Koppelman, Guha Krishnamurthi, Jed Lewinsohn, Kasper Lippert-Rasmussen, Anna Lvovsky, James Macleod, John Manning, Andrei Marmor, Todd Rakoff, Daphna Renan, Zalman Rothschild, Benjamin Sachs, Matthew Stephenson, Cass Sunstein, and Daniel Wodak; participants in the Harvard Law School Faculty Workshop and the Penn Law & Philosophy Workshop; and Isaac Green, Nathan Raab, and Catherine Willett, who also provided valuable research assistance. This project was supported by the Harvard Law School Summer Research Fund. 785

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