Federal courts artificially restrict the reach of discrimination and retaliation law by creating judge-made doctrines not contained in the statutory text. To date, scholars have catalogued and critiqued many of these doctrines. Despite this scrutiny, one doctrine is often missing from the discussion: temporal proximity.

Plaintiffs often use temporal proximity arguments to establish discrimination or retaliation. For example, a plaintiff might argue that shortly after she complained about discrimination, the employer fired her. The doctrine appears to work in the plaintiff’s favor.

It often does not. Analyzing five years of federal appellate temporal proximity cases reveals how judges have created a temporal proximity doctrine that relies on inferences that often favor employers. These inferences limit the ways that plaintiffs can establish discrimination or retaliation, contrary to the text of the federal discrimination statutes. Judges apply these rules when considering motions to dismiss and motions for summary judgment, even though procedural rules require the courts to draw inferences in favor of the nonmoving party.

Recently, the Supreme Court has emphasized the primary role the text of the federal statutes should play in interpreting them. Many of the court-created inferences in temporal proximity doctrine are not found within the federal statutes and instead are judicially created hurdles that should be eliminated as legal standards. As the federal discrimination statutes do not contain words limiting the breadth of causation, courts are required to allow litigants to establish causation with any evidence that a reasonable factfinder could use to determine liability. Courts must abandon narrow versions of the temporal proximity doctrine that do not comply with the statutory text or the Federal Rules of Civil Procedure.