Swann v. Charlotte-Mecklenberg Board of Education Appendix Vol. III pp. 891-1320

    No. 18-1171
In  T he

Supreme Court of tf)t Umteb States
C o m c a s t  C o r p o r a t io n ,

V.

Petitioner,

N a t io n a l  A s s o c ia t io n  o f  A f r ic a n  A m e r ic a n - 
O w n e d  M e d ia  a n d  E n t e r t a in m e n t  S t u d io s  

N e t w o r k s , In c .,
Respondents.

On Writ o f  Certiorari to the 
United States Court o f  Appeals 

for the Ninth Circuit

BRIEF OF AMICI CURIAE NAACP LEGAL 
DEFENSE & EDUCATIONAL FUND, INC., AND 

TEN CIVIL RIGHTS LITIGATING 
ORGANIZATIONS IN SUPPORT OF 

RESPONDENTS

S h e r r il y n  A. If il l  
Director-Counsel 

Ja n a i  S. N e l s o n  
S a m u e l  S p it a l  
J in  H e e  L ee  
K r is t e n  A. Jo h n s o n *
J. Za c h e r y  M o r r is  
NAACP L e g a l  D e f e n s e  &

E d u c a t io n a l  F u n d , I n c .
40 Rector St., 5th Floor
New York, NY 10006 *Counsel of Record
(212) 965-2200
kjohnson@naacpldf.org September 30, 2019

mailto:kjohnson@naacpldf.org


1

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES........................................ii

INTERESTS OF AMICI CURIAE...............................1

SUMMARY OF ARGUMENT......................................6

ARGUMENT.................................................................9

I. “But-For” Causation Can Rarely Be 
Resolved on the Pleadings in Race 
Discrimination Cases Because Plausible 
Allegations of Motivating-Factor 
Discrimination Give Rise to a Plausible
Inference of “But-For” Causation......................... 9

II. A Defendant’s Proffer of Additional 
Reasons for the Challenged Conduct Does 
Not Negate “But-For” Causation........................ 15

CONCLUSION............................................................21



11

TABLE OF AUTHORITIES

CASES

Archie v. Home-Towne Suites, LLC,
749 F. Supp. 2d 1308 (M.D. Ala. 2010)...............15

Ashcroft v. Iqbal,
556 U.S. 662 (2009)...........................................9, 14

Batson v. Kentucky,
476 U.S. 79 (1986).................................................19

Braden v. Wal-Mart Stores, Inc.,
588 F.3d 585 (8th Cir. 2009)................................ 17

Burrage u. U.S.,
571 U.S. 204 (2014)............................................... 16

Comcast Corp. v. N.A. of African American- 
Owned Media,
139 S. Ct. 2693 (2019)........................................... 10

Donathan v. Oakley Grain, Inc.,
861 F.3d 735 (8th Cir. 2017)................................ 13

Gen. Refractories Co. v. First State Ins. Co,
855 F.3d 152 (3d Cir. 2017)................................. 16

Hunter v. Underwood,
471 U.S. 222 (1985)................................................10

Ideal Steel Supply Corp. v. Anza,
652 F.3d 310 (2d Cir. 2011)................................. 13

PAGE(S)



I l l

CASES

TABLE OF AUTHORITIES
(CONTINUED)

PAGE (SI

Kaur v. Holder,
561 F.3d 957 (9th Cir. 2009)................................ 12

Lewis v. Univ. of Pittsburgh,
725 F.2d 910 (3d Cir. 1983)................................. 12

Lipchitz v. Raytheon Co.,
434 Mass. 493 (Mass. 2001)..................................17

Lytle u. Household Mfg., Inc.,
494 U.S. 545 (1990)................................................. 1

McDonough v. Anoka County,
799 F.3d 931 (8th Cir. 2015)......................... .......14

McNely v. Ocala Star-Banner Corp.,
99 F.3d 1068 (11th Cir. 1996)..............................15

Miller-El u. Dretke,
545 U.S. 231 (2005)............................................... 20

Mt. Healthy City Sch. Dist. Bd. of Educ. v. 
Doyle,
429 U.S. 274 (1977)................................ 11



IV

CASES

Parnell v. Peak Oilfield Serv. Co.,
174 P.3d 757 (Alaska 2008)................................. 16

Patterson v. McLean Credit Union,
485 U.S. 617 (1988)................................................. 1

Redd v. N.Y. State Div. of Parole,
678 F.3d 166 (2d Cir. 2012)................................. 13

Scheuer v. Rhodes,
416 U.S. 232 (1974)............................................... 14

Smith v. Harrington,
No. C 12-03533 LB, 2015 WL 1407292
(N.D. Cal. Mar. 27, 2015)..................................... 14

Snyder v. Louisiana,
552 U.S. 472 (2008)............................................... 20

Spann v. Shuqualak Lumber Co., Inc.,
990 So. 2d 186 (Miss. 2008)................................. 16

State v. Hennings,
791 N.W.2d 828 (Iowa 2010)................................16

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)



V

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

CASES

Vill. of Arlington Heights v. Metro. Hous.
Dev. Corp.,
429 U.S. 252 (1977)...............................................10

STATUTES

42 U.S.C. § 1981.................................................6, 8, 19

OTHER AUTHORITIES

Arin N. Reeves, Nextions, Written in Black 
and White: Exploring Confirmation Bias 
in Racialized Perceptions of Writing 
Skills, https://nextions.com/wp- 
content/uploads/2017/05/written-in- 
black-and-white-yellow-paper-series.pdf..... 18, 19

Bobby Marzine Harges, Batson Challenges 
in Criminal Cases: After Snyder v.
Louisiana, Is Substantial Deference to 
the Trial Judge Still Required?, 19 B.U.
Pub. Int. L.J. 193, 193-194 (2010).......................19

Dan B. Dobbs, Paul T. Hayden and Ellen 
M. Bublick, The Law of Torts § 186 (2d 
ed.)..........................................................................16

Fowler V. Harper et al., 4 Harper, James
and Gray on Torts § 20.2 (3d ed. 2007)...............16

https://nextions.com/wp-content/uploads/2017/05/written-in-black-and-white-yellow-paper-series.pdf
https://nextions.com/wp-content/uploads/2017/05/written-in-black-and-white-yellow-paper-series.pdf
https://nextions.com/wp-content/uploads/2017/05/written-in-black-and-white-yellow-paper-series.pdf


INTERESTS OF AMICI CURIAE1
This brief is submitted by the NAACP Legal 

Defense and Educational Fund, Inc., and ten other 
civil rights litigating organizations.

The NAACP Legal Defense and Educational 
Fund, Inc. (“LDF”), is a non-profit, non-partisan 
law organization established under the laws of New 
York to assist Black people and other people of color 
in the full, fair, and free exercise of their 
constitutional and statutory rights. Founded in 1940 
under the leadership of Thurgood Marshall, LDF 
focuses on eliminating racial discrimination in 
economic justice, education, criminal justice, and 
political participation. Throughout its history, LDF 
has represented plaintiffs seeking to protect their 
rights under 42 U.S.C. § 1981, see, e.g., Lytle u. 
Household Mfg., Inc., 494 U.S. 545 (1990); Patterson 
v. McLean Credit Union, 485 U.S. 617 (1988), and has 
a strong interest in the proper interpretation and 
application of Section 1981 on behalf of civil rights 
claimants in the full range of economic transactions 
covered by the statute, including bank loans, home 
purchases and rentals, employment discrimination, 
and contracts for services.

1 Pursuant to Supreme Court Rule 37.6, counsel for amici curiae 
state that no counsel for a party authored this brief in whole or 
in part and that no person other than amici curiae, its members, 
or its counsel made a monetary contribution to the preparation 
or submission of this brief. Pursuant to Supreme Court Rule 
37.3, counsel for amici curiae state that both parties have filed 
blanket consent to the filing of amicus briefs.



2
The American Civil Liberties Union 

(“ACLU”) is a nationwide, non-profit, non-partisan 
organization of nearly 2 million members dedicated to 
defending the principles of liberty and equality 
embodied in the U.S. Constitution and our nation’s 
civil rights laws. Founded more than 90 years ago, 
the ACLU has participated in numerous cases before 
this Court involving the scope and application of 
federal civil rights laws, both as direct counsel and as 
amicus curiae. Through its Racial Justice Program, 
the ACLU engages in nationwide litigation and 
advocacy to enforce and protect the rights of people of 
color against unlawful discrimination.

Americans United for Separation of Church 
and State is a national, nonsectarian public interest 
organization that works to protect the rights of 
individuals and communities to worship as they see 
fit and to preserve the separation of religion and 
government as a vital component of democratic 
governance. With a national network of more than 
300,000 supporters, Americans United has since 1947 
been safeguarding our American value of religious 
freedom for all people. Americans United regularly 
serves as a party, as counsel, or as an amicus curiae 
in cases before this Court and in the federal and state 
courts nationwide. Americans United believes that 
people should not experience discrimination because 
of their religion and that religion should not be used 
as a justification to harm others. Thus, it is critical to 
our work and our mission that the proper causation 
analysis is applied to discrimination claims involving 
not just race, but a wide spectrum of traits, including 
religion.



3
Farmworker Justice is a non-profit 

organization that empowers farmworkers—people 
who labor on farms and ranches in the United 
States—to improve their wages and working 
conditions, immigration status, health, occupational 
safety, and access to justice. Farmworker Justice 
accomplishes these aims through policy advocacy, 
litigation, training, public education and support for 
organizing. There are an estimated 2.4 million 
farmworkers in the United States, not including their 
family members. Approximately 83 percent of 
farmworkers are Hispanic and 76% of farmworkers 
were born in foreign countries. In service to 
farmworkers, Farmworker Justice maintains a strong 
interest in supporting the implementation of the civil 
rights statutes in this action.

The Fred T. Korematsu Center for Law and 
Equality is a non-profit organization based at the 
Seattle University School of Law. It works to advance 
justice through research, advocacy, and education. 
Inspired by the legacy of Fred Korematsu—who 
defied military orders during World War II that 
resulted in the unlawful incarceration of 120,000 
Japanese Americans—the Korematsu Center works 
to advance social justice for all. It has a special 
interest in ensuring that minorities are able to 
participate fully in this nation’s civic and economic 
life.2

The Impact Fund is a non-profit foundation that 
provides funding, training, and co-counsel to public 
interest litigators across the country. It is a California

2 The Korematsu Center does not represent the official views of 
Seattle University.



4

State Bar Legal Services Trust Fund Support Center, 
providing services to legal services projects across 
California. The Impact Fund is counsel in a number 
of major civil rights class actions, including cases 
challenging employment discrimination, lack of 
access for those with disabilities and violations of fair 
housing laws.

LATINOJUSTICE PRLDEF (“LJP”) is a
national not-for-profit civil rights legal defense fund 
that has advocated for and defended the 
constitutional rights and the equal protection of all 
Latinos under the law. Since our founding in 1972 as 
the Puerto Rican Legal Defense & Education Fund, 
LJP’s continuing mission is to promote the civic 
participation of the greater pan-Latino community in 
the United States, to cultivate new Latino community 
leaders, and to engage in and support law reform 
cases around the country challenging multiple forms 
of invidious discrimination involving criminal justice, 
education, employment, fair housing, immigrants’ 
rights, language rights, redistricting and voting 
rights. LJP strives to ensure that Latinos are not 
illegally or unfairly affected by discriminatory policies 
and practices.

The Mexican American Legal Defense and 
Educational Fund (“MALDEF”) is a national civil 
rights organization established in 1968. Its principal 
objective is to secure the civil rights of Latinos living 
in the United States through litigation, advocacy, and 
education. MALDEF’s mission is to foster sound 
public policies, laws, and programs to safeguard the 
civil rights of Latinos living in the United States and 
to empower the Latino community to participate fully 
in our society.



5
The National Women’s Law Center (“NWLC”)

is a nonprofit legal advocacy organization dedicated 
to the advancement and protection of women’s legal 
rights and the rights of all people to be free from sex 
discrimination. Since its founding in 1972, NWLC has 
focused on issues of key importance to women and 
girls, including economic security, employment, 
education, and health, with special attention to the 
needs of low-income women and those who face 
multiple and intersecting forms of discrimination. 
NWLC has participated as counsel or amicus curiae 
in a range of cases before the Supreme Court and the 
federal Courts of Appeals to secure equal treatment 
and opportunity in all aspects of society through 
enforcement of the Constitution and laws prohibiting 
discrimination. NWLC seeks to ensure that rights 
and opportunities are not restricted on the basis of 
gender and that all individuals, including women of 
color and LGBTQ individuals, enjoy the full 
protections against sex discrimination promised by 
federal law.

Outten & Golden LLP (“O&G”) is a national 
law firm at the forefront of employment and civil 
rights litigation for two decades, representing 
individuals in all sectors of the economy confronting 
systemic discrimination in hiring, compensation, 
promotion, and wrongful termination. O&G has 
represented plaintiffs seeking to protect their rights 
under 42 U.S.C. § 1981, see, e.g., Perez u. Wells Fargo 
Bank, N.A., Case No. 17-cv-00454 (N.D. Cal.); 
Rodriguez u. Procter & Gamble, Case No. l:17-cv- 
22652 (S.D. Fla.); Juarez v. The Northwestern Mutual 
Life Ins. Co., Inc., Case No. 14-cv-5107 (S.D.N.Y.), and 
our clients have a strong interest in the proper



6
interpretation and application of Section 1981 in the 
employment and lending context.

The Southern Coalition for Social Justice 
(“SCSJ”) is a 501(c)(3) nonprofit public interest law 
organization founded in 2007 in Durham, North 
Carolina. SCSJ partners with communities of color 
and economically disadvantaged communities in the 
South to defend and advance their political, social, 
and economic rights through the combination of legal 
advocacy, research, organizing and communications. 
SCSJ has frequently pursued federal litigation that 
implicates anti-discrimination laws in the areas of 
education, criminal justice reform and voting rights. 
In particular, SCSJ has pursued litigation and 
advocacy under Section 1981 to address 
discrimination connected to public employment and 
prison conditions. All of this work by SCSJ is part of 
its mission to assure that all communities can enjoy 
the rights of economic opportunity and liberty 
unfettered by race discrimination.

SUMMARY OF ARGUMENT
Originally enacted as part of the Civil Rights Act 

of 1866, 42 U.S.C. § 1981 is our nation’s oldest civil 
rights law. It remains one of our most important. By 
mandating that all people in the United States have 
the same right “to make and enforce contracts . . .  as 
. . . white citizens,” it is designed to ensure that all 
Americans have equal opportunities to work, to bank, 
to shop, to rent or buy a home, and to become 
entrepreneurs free from racial discrimination.

The arguments advanced by Petitioner Comcast 
Corporation are inconsistent with the plain text of



7

Section 1981, and they would frustrate the 
fundamental purpose of the statute’s drafters—to 
place African Americans on equal footing as white 
citizens in our nation’s economy without the taint of 
racial discrimination. Comcast urges the Court to 
hold not only that Section 1981 requires “but-for” 
causation, but also that “but-for” causation can be 
resolved on the pleadings and that the existence of 
non-racial justifications for a defendant’s conduct 
means a Section 1981 claim should be dismissed 
without discovery or trial. If successful, Comcast’s 
arguments would, in many cases, impose an 
impossible pleading burden on victims of
discrimination and prevent them from vindicating 
meritorious claims.

Respondents’ pleading contained plausible 
allegations that Comcast’s refusal to contract with 
them was motivated by racial discrimination. 
Respondents’ Complaint therefore cannot be 
dismissed on the pleadings even assuming arguendo 
that Section 1981 includes a “but-for” causation 
requirement. When a plaintiff presents well-pleaded 
allegations supporting a plausible inference that a 
defendant’s conduct was motivated by racial 
discrimination, the same allegations also support a 
plausible inference that discrimination was a “but- 
for” cause of the defendant’s conduct. That is clear 
from this Court’s precedent, which has repeatedly 
recognized the logical connection between motivating- 
factor discrimination and “but-for” causation.



8
It is also clear from Comcast’s own brief. All of 

Comcast’s arguments about why, in its view, 
Respondents failed to present sufficient allegations of 
“but-for” causation are actually arguments about why 
Respondents supposedly failed to allege that Comcast 
was motivated by racial discrimination in refusing to 
contract with them. But this Court denied certiorari 
on that question. Comcast’s sleight of hand in seeking 
to revive it simply underscores that a Section 1981 
complaint rises or falls on whether the plaintiff has 
adequately pleaded that racial discrimination was a 
motivating factor for the defendant’s conduct.

Equally untenable is Comcast’s argument that 
the potential existence of additional, non-racial 
explanations for its refusal to contract with 
Respondents defeats their Section 1981 claim. A “but- 
for” cause is not required to be the sole cause, and 
there can be multiple “but-for” causes for a 
defendant’s action. These principles are especially 
important in racial discrimination cases. If an 
employer fires a Black employee for a mistake but 
gives white employees who make the same mistake 
only a mild reprimand, the employer has denied the 
Black employee the same right “to make and enforce 
contracts . . .  as is enjoyed by white citizens.” 42 
U.S.C. § 1981(a). It does not matter that the 
employee’s mistake constitutes an additional, non- 
racial justification for the firing. These legal 
principles are also critical to uphold given that women 
of color and others often face discrimination based on 
more than one protected trait.



9
Comcast is, of course, entitled to present evidence 

that in this case it really would have refused to 
contract with Respondents even in the absence of any 
discriminatory motive. But that is a fact-intensive 
question that requires discovery and, in most cases, 
the vigorous examination of fact and evidence at trial. 
It cannot be resolved on the pleadings.

ARGUMENT

I. “But-For” Causation Can Rarely Be 
Resolved on the Pleadings in Race 
Discrimination Cases Because Plausible 
Allegations of Motivating-Factor
Discrimination Give Rise to a Plausible 
Inference of “But-For” Causation.

Amici curiae agree with Respondents that Section 
1981 does not require the plaintiff to prove “but-for” 
causation. However, even if the Court were to 
disagree with this position, any disputes regarding 
the causal connection between race and Comcast’s 
actions involve factual inquiries that cannot be 
resolved on a motion to dismiss.

In reviewing a motion to dismiss, courts must 
accept all well-pleaded factual allegations contained 
in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 
662, 678-79 (2009) (“When there are well-pleaded 
factual allegations, a court should assume their 
veracity . . . .”) (emphasis added). In the instant case, 
the Ninth Circuit held that Respondents plausibly 
alleged that race was a motivating factor in Comcast’s 
refusal to contract. The plausibility of Respondents’



10
allegations is not an issue before the Court. See 
Comcast Corp. v. N.A. of African American-Owned 
Media, 139 S. Ct. 2693, 2693-94 (2019). The Court, 
therefore, must accept as true Respondents’ 
allegations that race was a motivating factor in 
Comcast’s conduct.

Because Respondents alleged facts giving rise to 
a plausible inference that race was a motivating 
factor in Comcast’s conduct, they likewise necessarily 
alleged facts making it plausible that race was a “but- 
for” cause of the aggrieved conduct. This is clear from 
this Court’s precedent in cases involving both Equal 
Protection Clause and First Amendment claims.

In Arlington Heights, the Court held that if a 
plaintiff shows that state conduct was motivated, 
even in part, by a racially discriminatory purpose, the 
burden shifts to defendants to prove they would have 
made the same decision without consideration of the 
impermissible, discriminatory purpose. Vill. of 
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 
252, 270 n.21 (1977); see also Hunter v. Underwood, 
471 U.S. 222, 228 (1985) (“Once racial discrimination 
is shown to have been a ‘substantial’ or ‘motivating’ 
factor behind enactment of the law, the burden shifts 
to the law’s defenders to demonstrate that the law 
would have been enacted without this factor.”). 
Arlington Heights thereby makes clear that, once the 
plaintiff establishes that race was a motivating factor 
in the defendant’s conduct, that creates a 
presumption that race was also a “but-for” cause of



11
the defendant’s conduct, and the burden shifts to the 
defendant to rebut that inference.

The Court has similarly held that when a plaintiff 
shows the exercise of his First Amendment rights was 
a motivating factor in the defendant’s decision not to 
rehire him, the burden shifts to the defendant to show 
it would have taken the same action even in the 
absence of the protected conduct. Mt. Healthy City 
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 
(1977) (citing Arlington Heights, 429 U.S. at 270 
n.21). In other words, the defendant bore the burden 
of rebutting the presumed “but-for” causation.

For the reasons stated by Respondents, this Court 
should adopt (indeed already has adopted) a similar 
burden-shifting framework under Section 1981. See 
Respondents’ Br. at 18-28. Burden-shifting aside, 
Arlington Heights and Mt. Healthy stand for a more 
fundamental proposition: When a plaintiff
demonstrates that the defendant was motivated at 
least in part by legally prohibited considerations, it 
logically follows that those same considerations were 
at least a “but-for” cause of the defendant’s conduct.

By holding that “but-for” causation must be 
rebutted following a showing that discrimination was 
a motivating factor, Arlington Heights and Mt. 
Healthy necessarily recognize that motivating factor 
allegations constitute allegations of “but-for”
causation—a party “cannot rebut what has not been 
alleged.” Kaur v. Holder, 561 F.3d 957, 961 (9th Cir. 
2009). As the Third Circuit explained in discussing 
Mt. Healthy, this Court’s burden-shifting framework



12
“did not deviate from the requirement of ‘but for’ 
causation; rather, its only effect was to allocate and 
specify burdens of proof.” Lewis v. Univ. of Pittsburgh, 
725 F.2d 910, 916 (3d Cir. 1983).

Thus, by plausibly pleading that discrimination 
was a motivating factor in Comcast’s conduct, 
Respondents have plausibly alleged “but-for” 
causation. Regardless of whether the burden of proof 
ultimately shifts to Comcast to prove that it would 
have acted similarly without the consideration of 
race, Respondents’ plausible allegations of 
discrimination create a plausible inference of “but- 
for” causation. Those allegations must be accepted as 
true at this stage in the litigation and, at a minimum, 
survive a motion to dismiss to make way for a fact­
intensive inquiry concerning Comcast’s motives and 
the cause of its failure to contract with Respondents.

Comcast’s brief to this Court underscores this 
point. Although Comcast contends that Respondents 
failed to plead “but-for” causation, its arguments are 
all focused on its assertion that Respondents failed to 
plead “that race played any role in Comcast’s decision 
not to carry ESN’s networks.” Pet’r Br. at 43. 
However, this Court did not grant certiorari on that 
question, and the case comes to this Court on the 
premise that Respondents have adequately alleged 
that race played a role in Comcast’s decision not to 
carry ESN’s networks. Comcast makes no argument 
that would allow a court to: (a) recognize that 
Respondents plausibly alleged that race was a 
motivating factor for Comcast’s refusal to contract,



13
but (b) find that it is implausible to infer that race was 
a “but-for” cause of Comcast’s conduct. See id. at 40- 
47. That is because plausible allegations that the 
defendant was motivated by discrimination 
necessarily permit a logical inference that
discrimination was a “but-for” factor for the 
defendant’s conduct.

Consistent with this principle, none of the cases 
cited by Comcast in support of its contention that 
“but-for” causation is necessary for Section 1981 
liability dealt with that issue on the pleadings. In 
contrast, federal courts have repeatedly recognized in 
a wide variety of contexts that assessing “but-for” 
causation is a factual inquiry generally reserved for 
the finder of fact at trial, rather than on summary 
judgment, let alone on the pleadings. See, e.g., 
Donathan u. Oakley Grain, Inc., 861 F.3d 735, 737, 
740-43 (8th Cir. 2017) (reversing grant of summary 
judgment after review of “fully developed summary 
judgment record” demonstrated that reasonable jury 
could find impermissible retaliatory “but-for” cause 
despite defendants’ proffered explanations); Redd v. 
N.Y. State Div. of Parole, 678 F.3d 166, 178 (2d Cir. 
2012) (“Issues of causation, intent, and motivation are 
questions of fact. . . . [and where] fact questions such 
as ‘state of mind or intent are at issue,’ summary 
judgment ‘should be used sparingly[.]’”); Ideal Steel 
Supply Corp. v. Anza, 652 F.3d 310, 328 (2d Cir. 2011) 
(“[B]ut-for causation is an issue of fact for the jury .. . 
not, where there is evidence to support a finding of 
causation, a matter to be decided by the court on a 
motion for summary judgment.”) (citing Jett v. Dallas



14

Indep. Sch. Dist., 491 U.S. 701, 737 (1989)); Smith v. 
Harrington, No. C 12-03533 LB, 2015 WL 1407292, 
at *21 n.9 (N.D. Cal. Mar. 27, 2015) (noting that while 
“but-for” causation is generally reserved for the trier 
of fact to resolve, the issue could be decided on a 
motion for summary judgment where causation could 
not reasonably be established on the basis of the 
facts).

“When a federal court reviews the sufficiency of a 
complaint, before the reception of any evidence . . .  its 
task is necessarily a limited one.” Scheuer v. Rhodes, 
416 U.S. 232, 236 (1974) overruled on other grounds 
by Davis v. Scherer, 468 U.S. 183 (1984). While the 
Court’s pleading standard does require more than a 
“defendant-unlawfully-harmed-me-accusation,” it 
does not require “detailed factual allegations” that 
meet a “probability requirement.” Iqbal, 556 U.S. at 
678 (citation omitted). With Respondents’ allegations 
of racial motivation accepted as true at this stage, it 
is plausible to infer that Comcast’s discrimination 
was a “but-for” cause of Comcast’s refusal to contract. 
Thus, assuming arguendo that “but-for” causation is 
required under Section 1981, Respondents have met 
their burden. It is impossible for the Court to discern 
the role that race did or did not play without a record 
upon which to base this fact-intensive analysis. 
‘“[Fjerreting out the most likely reason for the 
defendants’ actions is not appropriate at the 
pleadings stage.’” McDonough v. Anoka County, 799 
F.3d 931, 946 (8th Cir. 2015) (quoting Watson Carpet 
& Floor Covering, Inc. v. Mohawk Indus., Inc., 648 
F.3d 452, 458 (6th Cir. 2011)).



15
II. A Defendant’s Proffer of Additional Reasons 

for the Challenged Conduct Does Not 
Negate “But-For” Causation.

Comcast insists that Respondents’ complaint 
recites “other . . . race-neutral explanations,” for 
Comcast’s refusal to contract. Pet’r Br. at 5. But any 
references to possible race-neutral reasons for 
Comcast’s actions do not refute the inference that 
Comcast’s discrimination was a “but-for” cause of its 
conduct. A “but-for” cause is not required to be a sole 
cause. At the pleadings stage, it is impossible to 
discern whether Comcast would have refused to 
contract with Respondents based solely on those 
purported race-neutral reasons had Comcast not also 
been motivated by discrimination.

As one court has aptly stated, “[i]t has long been 
the law that there is a difference between ‘but for’ 
causation and ‘sole’ causation.” Archie u. Home-Towne 
Suites, LLC, 749 F. Supp. 2d 1308, 1315 n.4 (M.D. 
Ala. 2010) (citing McDonald v. Santa Fe Trail Transp. 
Co., 427 U.S. 273, 282 n.10 (1976)); accord McNely v. 
Ocala Star-Banner Corp., 99 F.3d 1068, 1076 (11th 
Cir. 1996) (emphasizing that “because o f’ is not 
equivalent to “solely because o f’) (citing Price 
Waterhouse v. Hopkins, 490 U.S. 228 (1989)).

Indeed, “but-for” causation “‘is a de minimis 
standard of causation, under which even the most 
remote and insignificant force may be considered the 
cause of an occurrence.’” Gen. Refractories Co. v. First 
State Ins. Co, 855 F.3d 152, 161 (3d Cir. 2017) 
(citation omitted). As this Court has recognized: “but



16
for ‘is the minimum concept of cause Burrage v. 
U.S., 571 U.S. 204, 211 (2014) (citation omitted).

It necessarily follows that there can be multiple 
“but-for” causes of a defendant’s action, conduct, or 
decision. Indeed, this is a basic principle of tort law: 
“It is by no means true that the but-for test reduces 
everything to a single cause.” Dan B. Dobbs, Paul T. 
Hayden and Ellen M. Bublick, The Law of Torts § 186 
(2d ed.). See also Fowler V. Harper et al., 4 Harper, 
James and Gray on Torts § 20.2, at 100-101 (3d ed. 
2007) (“Probably it cannot be said of any event that it 
has a single causal antecedent. . . .”).

Courts across the country have acknowledged and 
applied this basic principle in a variety of contexts. 
E.g., State v. Hennings, 791 N.W.2d 828, 836 (Iowa 
2010), overruled on other grounds by State v. Hill, 878 
N.W.2d 269 (Iowa 2016) (holding that the existence of 
multiple factual cases did not relieve the defendant of 
liability as “just because the boys’ presence in the 
street was a separate factual cause [of defendant 
running them over with his car] does not mean race 
was not also a but-for cause”); Parnell v. Peak Oilfield 
Serv. Co., 174 P.3d 757, 765 (Alaska 2008)
(overturning jury instruction that implied there could 
be only one “but-for” cause); Spann v. Shuqualak 
Lumber Co., Inc., 990 So. 2d 186, f  13 (Miss. 2008) 
(reversing grant of summary judgment because 
identification of which potential causes out of 
multiple factors actually caused an accident is a 
“question within the province of a jury”); Lipchitz v. 
Raytheon Co., 434 Mass. 493, 506 n.19 (Mass. 2001)



17
(“That a defendant’s discriminatory intent, motive or 
state of mind is ‘the determinative cause’ does not 
imply the discriminatory animus was the only cause 
of that action.”) (citation omitted).

Thus, Comcast’s references to potentially 
plausible, non-discriminatory justifications for its 
refusal to contract with Respondents does not render 
it implausible that Comcast’s discrimination was also 
a “but-for” cause of its conduct. Once again, this is an 
issue that cannot be resolved on the pleadings. To 
require Respondents “to rule out every possible lawful 
explanation for [Comcast’s] conduct. . . would invert 
the principle that the ‘complaint is construed most 
favorably to the nonmoving party,’ and would impose 
the sort of ‘probability requirement’ at the pleading 
stage which Iqbal and Twombly explicitly reject.” 
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 597 
(8th Cir. 2009) (vacating and remanding where, on 
Rule 12(b)(6) motion, district court improperly drew 
inferences in defendants’ favor and penalized plaintiff 
for failing to allege facts contradicting those 
inferences).

Comcast’s position is likewise inconsistent with 
the reality of racial discrimination in our society. 
Defendants will often be able to proffer a facially race- 
neutral justification for discriminatory conduct, but 
that does not make the discrimination any less 
pernicious or illegal. Additionally, it should be noted 
that women of color often face workplace or other 
discrimination based on more than one protected 
trait. Thus, for example, race discrimination and sex



18
discrimination could each be “but-for” causes for a 
particular action and having more than one cause 
does not negate the other when it comes to civil rights 
protections. As discussed herein, “but-for” causation 
does not mean sole cause—in the context of civil 
rights laws, this principle is particularly important 
for women of color and others who face discrimination 
connected to multiple and intersecting identities.

Consider a recent study involving law firm 
partners’ review of associates’ written work product. 
In this study, researchers presented partners with an 
identical written memo from a hypothetical Black 
associate and a hypothetical white associate.3 The 
only difference was the listed race of the associate. 
Yet, the partners evaluated this identical memo much 
more negatively when it came from a hypothetical 
Black associate. In reviewing the exact same memo, 
on average the partners marked twice as many 
spelling and grammatical errors for the hypothetical 
Black associate as for the hypothetical white 
associate, and gave the Black associate an average 
3.2/5.0 rating as compared to 4.1/5.0 for the white 
associate.4

In the real world, such harsher evaluations of a 
Black associate’s mistakes could result in a Black

3 Arin N. Reeves, Nextions, Written in Black and White: 
Exploring Confirmation Bias in Racialized Perceptions of 
Writing Skills, https://nextions.com/wp-
content/uploads/2017/05/written-in-black-and-white-yellow- 
paper-series.pdf.

4 See id.

https://nextions.com/wp-


19
associate being denied a promotion offered to a white 
associate whose comparable mistakes were not 
judged as harshly. The firm could proffer a race- 
neutral reason for not promoting the Black associate 
(i.e., the mistakes in the associate’s work product), 
but race would still be a <cbut-for” cause of the adverse 
action. Section 1981 unquestionably prohibits such 
discrimination because the Black associate has been 
denied the “same right to . . . make and enforce 
contracts . . .  as is enjoyed by white citizens.” 
42 U.S.C. § 1981(a); see id. (b) (defining “make and 
enforce” contracts). Yet under Comcast’s theory, the 
existence of a race-neutral reason for the firm’s 
conduct would lead to dismissal at the pleading stage 
of a Section 1981 violation.

The Court’s longstanding efforts to eradicate 
racial discrimination in the exercise of peremptory 
challenges are also instructive. In Batson u. Kentucky, 
476 U.S. 79, 98 (1986), the Court recognized that 
facially race-neutral preemptory challenges “create a 
cloak for possible discrimination.”5 Thus, even where 
a prosecutor identifies a facially legitimate reason for 
striking prospective Black jurors (e.g., voir dire 
responses that “could well have signaled a limit on 
their willingness to impose a death sentence . . .” in a 
capital case), the strike violates the Equal Protection 
Clause if the prosecutor’s failure to strike white jurors 
who provide similar answers indicates that the

5 Bobby Marzine Harges, Batson Challenges in Criminal Cases: 
After Snyder v. Louisiana, Is Substantial Deference to the Trial 
Judge Still Required?, 19 B.U. Pub. Int. L.J. 193, 193-194
(2010).



20
prosecutor was motivated by racial discrimination. 
Miller-El v. Dretke, 545 U.S. 231, 245 (2005).

In sum, when a plaintiff plausibly alleges that 
racial discrimination was a motivating factor for the 
defendant’s conduct, it is plausible to infer that racial 
discrimination was also a “but-for” cause of the 
defendant’s conduct. The potential existence of “other 
. . . race-neutral explanations” for the defendant’s 
conduct, Pet’r Br. at 5, may suggest that 
discrimination was not the sole cause, but that is not 
the standard. And the pleadings are not the time to 
resolve the “subtle question of causation . . .” that is 
raised if a defendant contends that it would have 
reached the same outcome based solely on non-racial 
considerations. Snyder v. Louisiana, 552 U.S. 472, 
486 (2008).



21
CONCLUSION

For the foregoing reasons, as well as those stated 
by Respondent, the judgment of the Ninth Circuit 
should be affirmed.

Respectfully submitted,

SHERRILYN A . Ifil l  
Director-Counsel 

Ja n a i  S. N e l s o n  
Sa m u e l  S p it a l  
J in  H e e  L e e

KRISTEN A. JOHNSON* * Counsel of Record
J. Z a c h e r y  M o r r is

NAACP L e g a l  D e f e n s e  & Counsel for Amici Curiae 
E d u c a t io n a l  F u n d , In c .

40 Rector St., 5th Floor
New York, NY 10006 September 30, 2019
kjohnson@naacpldf.org

mailto:kjohnson@naacpldf.org