Because of Bostock
In Bostock v. Clayton County, the Supreme Court extended Title VII to cover discrimination based on sexuality and gender identity. With most attention focused on the decision’s significance for LGBTQ+ equality, neither courts nor commentators have recognized Bostock’s potential to upend an entirely different feature of employment discrimination law. Bostock lays the groundwork for overturning the McDonnell Douglas burden-shifting framework—the onerous test courts apply to most Title VII claims. By requiring plaintiffs to prove that employers’ stated reasons for adverse employment actions are pretextual, McDonnell Douglas fails to recognize that discriminatory and nondiscriminatory but-for causes can coexist. Bostock implicitly rejects this assumption by recognizing that employment decisions can have multiple but-for causes, thereby arming litigants with the means to deliver a fatal blow to McDonnell Douglas.
* J.D. Candidate, May 2022, Yale Law School. My deepest thanks to Christine Jolls for her guidance and encouragement, and to Joshua Altman, Sammy Bensinger, William Eskridge, Jr., Sam Heavenrich, Nicole Ng, John Fabian Witt, and the editors of the Michigan Law Review Online for invaluable feedback.