Houston Law Review
Antidiscrimination law and scholarship have long been engaged in the debate over whether a discriminatory intent or disparate impact test best captures the type of discrimination the law should, or can, prohibit. This Article suggests that we move beyond this dichotomous debate and focus instead on how courts reason about discrimination cases brought under both the intent and impact doctrines. This Article identifies a distinct pattern, or framework, in the way courts reason about discrimination in both types of cases that defies neat doctrinal labels. reasoning process, which I shorthandedly refer to as "causation," is at the heart of evidentiary structures in both intent and impact actions. Unfortunately, the reigning distinction between intentional and disparate impact discrimination-an increasingly blurry one-has obscured the more important focus on the element of causation that, in my view, constitutes the normative core of antidiscrimination law. This Article seeks to shift attention toward this common causal inquiry as a lens into why, despite the persistence of status-based discrimination, so few discrimination claims (either intent or impact based) are successful.
Sheila R. Foster,
Causation in Antidiscrimination Law: Beyond Intent versus Impact , 41 Hous. L. Rev. 1469 (2004-2005)
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/220