It Could Have Been Worse, But a Statute Designed to “Break Down All Discrimination” Against African Americans Deserves Better than Comcast Corporation v. National Association of African American-Owned Media -

April 9, 2020

Comcast Corp. v. Nat’l. Ass’n of African Am.-Owned Media, 589 U.S. ___ (2020) (Gorsuch, J.).
Response by Samuel Spital*
Geo. Wash. L. Rev. On the Docket (Oct. Term 2019)
Slip Opinion | SCOTUSblog

It Could Have Been Worse, But a Statute Designed to “Break Down All Discrimination” Against African Americans Deserves Better than Comcast Corporation v. National Association of African American-Owned Media

The year after the Civil War, the federal government made a commitment to Black people in this country. In simple but sweeping language, the Civil Rights Act of 1866 mandates that “[a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”¹ This law, codified at 42 U.S.C. § 1981, prohibits discrimination against African Americans and other people of color in employment, housing, banking, consumer transactions, and in all other contractual relationships.²

As with many of our nation’s promises to Black people, this commitment was quickly broken. It remains unfulfilled. Pervasive anti-Black discrimination persists in all of these sectors of our nation’s economy.³ In a fundamental way, race continues to shape opportunity in this country.

Congress’s promise was broken, in part, because the Supreme Court failed to enforce it. In the 1870s, the Court became actively hostile to protecting the civil rights of African Americans, and, in 1906, it eviscerated the protections of the 1866 Civil Rights Act. That year, in Hodges v. United States,⁴ the Court limited the Act to cases involving “conduct which actually enslaves someone.”⁵ “As a result of Hodges, . . . ‘litigation under the predecessor of § 1981 virtually came to a halt.’”⁶

That began to change when the Court overruled Hodges in its 1968 decision Jones v. Alfred H. Mayer Company.⁷ Yet, perhaps in part resulting from this long period of Court-enforced dormancy, § 1981 sometimes remains overlooked even among civil rights advocates compared to the canonical anti-discrimination statutes of the 1960s—the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968.

It was not until this term that the Supreme Court addressed a basic question about the required elements for a § 1981 claim. The Court’s decision in Comcast Corporation v. National Association of African American-Owned Media,⁸ arose out of a suit filed by Entertainment Studios Network (ESN), an operator of television channels owned by the African American entrepreneur Byron Allen, against Comcast. In its complaint, ESN presented specific factual allegations supporting its claim that Comcast was motivated by racial discrimination in refusing to carry ESN’s channels. The question before the Supreme Court was whether, in addition to pleading that racial discrimination was a “motivating factor” for Comcast’s conduct, ESN also had to plead that Comcast’s discrimination was a but-for cause of its denial of a contract right to ESN.⁹

In a unanimous opinion by Justice Gorsuch, the Court held that but-for causation is required under § 1981. The Court looked to “‘textbook tort law’” principles, which require but-for causation, and saw no reason to depart from those principles in § 1981.¹⁰ The Court remanded for the Ninth Circuit to determine whether ESN made sufficient allegations of but-for causation to survive Comcast’s motion to dismiss.¹¹

The Court’s analysis in Comcast may appear straightforward. In fact, it does not do justice to this critical civil rights statute in two important respects. First, the Court failed to acknowledge that racial discrimination inflicts a serious injury even when the discrimination does not result in economic harm. Racial discrimination is not like a garden-variety tort, and therefore the Court’s tort analogy does not hold. When a defendant is motivated by racial discrimination in connection with the making or enforcement of a contract, the defendant’s discrimination in and of itself causes a dignitary injury to the plaintiff.

Second, the Court failed to explain why it needed to address this issue at all at the motion to dismiss stage. Comcast reached the Court on the premise that ESN adequately alleged Comcast was motivated by racial discrimination in declining to carry ESN’s networks. Even if ESN has to show an economic injury to succeed on a § 1981 claim, its allegations that race motivated Comcast’s refusal to contract also permit a reasonable inference that race was a but-for cause of Comcast’s conduct. That is all that is necessary to defeat a motion to dismiss.

And this overlap between “motivating factor” discrimination and but-for causation will invariably (or at least almost invariably) be true at the motion to dismiss stage in § 1981 cases. When a § 1981 plaintiff makes specific allegations that a defendant was motivated by racial discrimination in refusing to contract or denying a contractual benefit, it necessarily follows that the plaintiff has alleged discrimination was at least one cause of the defendant’s conduct.

Neither the Supreme Court, nor Comcast, explained how factual allegations could be sufficient to raise an inference of “motivating factor” discrimination but insufficient to raise an inference of “but-for causation.” Instead, Comcast insisted that it had legitimate business reasons for not carrying ESN’s networks. But, at the motion to dismiss stage, that argument is irrelevant. Some facially neutral reasons are pretexts for discrimination. And, even if Comcast’s reasons are not mere pretexts, but-for causation in a § 1981 case means that discrimination was a cause of the defendant’s conduct, not that it was the only cause.

The Court did not adopt Comcast’s misguided argument on this point, and the Ninth Circuit is free to hold on remand that ESN’s allegations concerning “motivating factor” discrimination also raise a reasonable inference of but-for causation. But, in failing to address the necessary overlap between “motivating factor” discrimination and but-for causation at the motion to dismiss stage, Comcast invites confusion and potentially mischief in future cases.

I. By Applying Ordinary Tort Law Principles to Causation Under Section 1981, the Supreme Court Failed to Address the Unique Injury Caused by Racial Discrimination.

As the Court framed it, Comcast was an easy case that called for the application of basic legal principles. It is “‘textbook tort law,’” the Court reasoned, “that a plaintiff seeking redress for a defendant’s legal wrong typically must prove but-for causation.”¹² To satisfy but-for causation “a plaintiff must demonstrate that, but for the defendant’s unlawful conduct, its alleged injury would not have occurred.”¹³ The Court saw nothing in the language or history of § 1981 to depart from this general rule. It therefore rejected the view of the Court of Appeals, which had adopted what the Supreme Court characterized as the “lesser standard” that exists in Title VII cases, i.e., that a plaintiff need only show “motivating factor” discrimination without any further showing of but-for causation.¹⁴

The issue in Comcast was far more difficult than the Court’s opinion acknowledged. Unlike “textbook tort law” causes of action, § 1981 was designed to “‘break down all discrimination between black men and white men.’”¹⁵ Such discrimination imposes a serious injury regardless of whether it deprives the victim of a tangible benefit. The Supreme Court previously recognized this very point. In Justice O’Connor’s words, the “stigmatizing injury often caused by racial discrimination” constitutes a “noneconomic injury [that] is one of the most serious consequences of discriminatory government action.”¹⁶

Although Justice O’Connor was speaking of racial discrimination by the government, racial discrimination by an employer, bank, store, or telecommunications company also imposes a dignitary injury. When Black people are followed in a store, or assumed not to have the assets for a certain banking product, or have their work product subject to extra layers of review, they endure dignitary harms. In each case, the unmistakable message is that African Americans are not full citizens entitled to equal dignity.

And, with respect to these dignitary harms, “motivating factor” discrimination is not a “lesser standard” than but-for causation. Because the discrimination is the injury, the standards are identical. To take the Court’s words in Comcast, when a plaintiff shows that a defendant was motivated by discrimination, the plaintiff necessarily “demonstrate[s] that, but for the defendant’s unlawful conduct, its alleged injury would not have occurred.”¹⁷

For the same reason, the Comcast Court’s textual analysis of § 1981 was flawed. The Court reasoned that the language of § 1981, which “guarantee[s] that each person is entitled to the ‘same right . . . as is enjoyed by white citizens’ directs our attention to the counterfactual—what would have happened if the plaintiff had been white?”¹⁸ Fair enough. But when a plaintiff of color shows that a defendant was motivated by racial discrimination in refusing to contract, the plaintiff has shown that she was subjected to a dignitary injury that would not have occurred had she been white.

In a separate opinion, Justice Ginsburg made a similar point, stressing that § 1981 prohibits racial discrimination in the formation of a contract and not simply in the outcome of the contract. As Justice Ginsburg noted, a contrary reading of the statute (which Comcast and the Solicitor General had advocated) would allow a lender to “requir[e] prospective borrowers to provide one reference letter if they are white and five if they are black,” or an employer to “reimburs[e] expenses for white interviewees but requir[e] black applicants to pay their own way.”¹⁹ That cannot be, and is not, the law. As Justice Ginsburg explained, the Court has already determined that § 1981 “‘applies to all phases and incidents of the contractual relationship.’”²⁰

In response to Justice Ginsburg’s opinion, the majority emphasized that it was not resolving whether § 1981 prohibits racial discrimination during the contract formation process. The Court simply stated that but-for causation is required regardless.²¹ In so doing, the Court missed the key point. If § 1981 prohibits racial discrimination in the contract formation process (and it does), then a plaintiff who endures such discrimination experiences a dignitary harm that requires no further analysis of but-for causation.

In declining to adopt the “motivating factor” standard for § 1981, the Court also emphasized differences between Title VII—which does not require a showing of but-for causation beyond “motivating factor” discrimination—and § 1981. The Court noted that Title VII was enacted almost a century after § 1981, and that Title VII (as amended in 1991) refers specifically to “motivating factor” discrimination whereas § 1981 does not.²¹

Yet, without analysis, the Court found support for its decision in two other anti-discrimination laws that were also passed roughly a century after § 1981, and which both have very different language than § 1981: Title VII’s anti-retaliation provision and the private-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA).²³ In sharply divided decisions, the Court previously held that those statutes—which include causation language that § 1981 lacks—require a showing of but-for causation beyond “motivating factor” discrimination.²⁴ But, if Title VII’s anti-discrimination provision is not instructive in interpreting § 1981, neither is its anti-retaliation provision or the ADEA’s private-sector provision. Indeed, just two weeks after deciding Comcast, the Supreme Court held that the ADEA’s federal-sector provision (whose text differs from the ADEA’s private-sector provision)²⁵ does not require a showing of but-for causation.²⁶

At bottom, the Comcast Court erred by failing to appreciate the consequences of its own interpretation of § 1981 in light of the unique harm caused by racial discrimination. When a plaintiff of color is discriminated against in connection with the making or enforcement of a contract, the plaintiff is subject to an immediate injury which, in the Comcast Court’s words, would not “have happened if the plaintiff had been white.” Therefore, “motivating factor” discrimination is, by definition, a but-for cause of a legally cognizable injury under § 1981.

II. At the Motion to Dismiss Stage, Allegations of “Motivating Factor” Discrimination Support an Inference of But-For Causation Regardless of How the Plaintiff’s Injury Is Defined.

To be sure, dignitary injuries are not the only injuries in § 1981 cases. When an employer, store, bank or telecommunications company refuses to contract with—or denies contract benefits to—a person of color because of racial discrimination, that person suffers an economic injury. The Comcast Court was focused on this economic injury in holding that but-for causation is required under § 1981.

Unlike for dignitary harms, there is a hypothetical universe of cases involving economic injuries where a plaintiff could prove motivating factor discrimination but not but-for causation. For example, one can imagine an employer who refuses to read a resume because he knows the applicant is Black, but who would not have considered the candidate had she been white because her resume showed she lacked necessary qualifications. But such a hypothetical scenario requires a sensitive analysis of all of the facts revealed through discovery. It cannot be resolved at the pleadings stage.

In considering whether a federal complaint can survive a motion to dismiss, a court must take the plaintiff’s well-pleaded factual allegations as true and draw all reasonable inferences in the plaintiff’s favor. When a plaintiff alleges facts permitting an inference that race was a motivating factor in a defendant’s refusal to contract, the plaintiff necessarily alleges facts making it plausible that race was a but-for cause of the defendant’s conduct.

The facts of Comcast highlight that point. In its complaint, ESN made multiple allegations permitting an inference that racial discrimination was a “motivating factor” for Comcast’s refusal to carry its networks. These allegations included that: Comcast offered inconsistent explanations for declining to carry ESN’s channels; Comcast offered contracts to “lesser-known, white-owned” networks during the same period; and a Comcast executive told ESN: “We’re not trying to create any more Bob Johnsons [the African American founder of Black Entertainment Television].”²⁷

Those same allegations of “motivating factor” discrimination also support an inference that discrimination was at least one cause of Comcast’s refusal to carry ESN’s channels. The essence of these allegations is that Comcast did not contract with ESN, at least in part, because of racial discrimination. And that is all but-for causation means.

And this will always (or at least almost always) be true at the pleading stage of a § 1981 case. When the plaintiff makes allegations supporting an inference that a defendant was motivated by race in refusing to contract, it will also be reasonable to infer that the defendant’s racial motivation was a but-for cause of its refusal. There may be cases where the defendant ultimately would have refused to contract even putting aside the discriminatory motive, such as the hypothetical employer who refuses to read the resume of a candidate who is objectively unqualified for the position. But it is impossible for a court to determine that fact-intensive question at the pleading stage, where all plausible inferences must be drawn in the plaintiff’s favor.

In an amicus brief filed by the NAACP Legal Defense & Educational Fund (LDF) and ten civil rights litigating organizations, we made this point.²⁸ Unfortunately, the Court did not address it. It simply held that, because but-for causation is an element of the plaintiff’s claim in a § 1981 case, the plaintiff must plead but-for causation in the complaint and then prove it at trial.

The Court did acknowledge that “[w]hat a plaintiff must do to satisfy [the] elements [of a claim] may increase as a case progresses from complaint to trial.”²⁹ But the Court never addressed the logical overlap at the complaint stage between allegations supporting an inference of “motivating factor” discrimination and allegations supporting an inference of but-for causation. It did not even suggest a hypothetical scenario where a plaintiff’s allegations would permit an inference of “motivating factor” discrimination but not permit an inference of but-for causation.

Nor did Comcast. Instead, Comcast contended that there were race-neutral explanations for its refusal to contract with ESN.³⁰ But, pointing to race-neutral reasons cannot defeat a showing of but-for causation at the pleading stage when all inferences are drawn in the plaintiff’s favor. As the Supreme Court has repeatedly recognized, some stated race-neutral reasons are false—pretexts to mask discrimination.³¹

And even if Comcast’s purported race-neutral reasons are not false, they may not be the only reasons why Comcast refused to contract with ESN. Therefore, especially at the motion to dismiss stage, they cannot be dispositive in analyzing but-for causation.

The Supreme Court has explained that “but-for ‘is the minimum concept of cause.’”³² In the Third Circuit’s words, it “is a de minimis standard of causation, under which even the most remote and insignificant force may be considered the cause of an occurrence.”³³ As a result, but-for cause does not mean “sole cause,” and there can be multiple causes for a defendant’s conduct.³⁴ As Justices Kagan put it at oral argument in Comcast: “But-for cause has never been sole cause. There can be three but-for causes in a case. You know, if you take away each of these three things, the outcome would have been different.”³⁵ In the § 1981 context, so long as discrimination was a cause of the defendant’s failure to contract, but-for causation is satisfied even if there were also non-racial reasons that played a role.

Indeed, the discrimination that so fundamentally limits economic opportunities for African Americans and other people of color often arises in situations involving mixed motives. A recent study involving law firm partners’ review of associates’ written work product is illustrative. Researchers presented partners with an identical written memo from a hypothetical Black associate and a hypothetical white associate.³⁶ Even though the memo was the same, the partners on average identified twice as many spelling and grammatical errors for the hypothetical Black associate as for the hypothetical white associate, and they gave the Black associate an average 3.2/5.0 rating as compared to 4.1/5.0 for the white associate.³⁷

Such harsher evaluations of a Black associate’s mistakes could well result in a law firm’s denial of contract opportunities—e.g., a promotion—to that associate. If sued under § 1981, the firm could proffer the mistakes in the Black associate’s work product as a race-neutral reason for not promoting her. And, those mistakes would perhaps be one but-for cause of the promotion denial. But race would also be a but-for cause, because the associate’s mistakes would have been judged less harshly had she been white. The promotion denial would violate § 1981 because—in the words of the Comcast Court—it would not “have happened if the [Black associate] had been white.”³⁸

The Supreme Court fortunately did not adopt Comcast’s position that but-for causation is defeated by the existence of race-neutral reasons for the defendant’s conduct. Comcast’s argument remains foreclosed by precedent recognizing that some race-neutral reasons are pretexts for discrimination, and that but-for causation does not mean sole causation. Lower courts should forcefully reject it both in this case and in any future case where a defendant raises a similar argument.

* * *

Because the Supreme Court did not adopt Comcast’s extreme positions, Comcast should not close the courthouse doors to plaintiffs with meritorious § 1981 claims. Yet, even though the decision could have been worse, the Court’s opinion does not honor the Reconstruction Congress’s commitment to placing African Americans on equal footing with whites in the making and enforcement of contracts. The Supreme Court failed to recognize the very real dignitary harms caused by racial discrimination. It imposed a burden for the plaintiff to plead but-for causation without acknowledging that this burden will be satisfied whenever a plaintiff adequately pleads “motivating factor” discrimination. Civil rights lawyers must remain vigilant in tracking how Comcast is applied by the lower courts and do what we can to ensure that the decision is not misread to bar meritorious claims of discrimination in the making or enforcement of contracts.

Samuel Spital is the Director of Litigation at the NAACP Legal Defense & Educational Fund, Inc.

Prior to joining LDF, Sam practiced for over a decade at two national law firms, where he worked with LDF as co-counsel on numerous cases involving capital punishment and voting rights. These included Buck v. Davis, in which the Supreme Court held that LDF-client Duane Buck’s constitutional rights were violated when Mr. Buck’s own trial counsel presented an “expert” who falsely testified that Mr. Buck was more likely to commit future acts of criminal violence because he is Black, and Williams v. Allen, in which the Eleventh Circuit Court of Appeals granted habeas corpus relief after the trial judge had overrode the jury’s 9-3 vote in favor of a life sentence and imposed death instead. In Northwest Austin Municipal Utility District No. 1 v. Holder and Shelby County v. Holder, Sam was an integral member of the LDF-led teams that represented Black voters who intervened to defend the constitutionality of the Voting Rights Act. Sam’s extensive experience in civil rights litigation also includes successfully representing three men who served between 25 and 40 years in solitary confinement-type conditions at the Louisiana State Penitentiary at Angola.

Sam served as a Lecturer-in-Law at Columbia Law School and an Adjunct Professor at Brooklyn Law School, where he taught courses on death penalty and prison litigation. He is a 2000 graduate of Harvard College and a 2004 graduate of Harvard Law School. After graduating law school, Sam clerked for The Honorable Harry T. Edwards of the United States Court of Appeals for the District of Columbia Circuit, and for The Honorable John Paul Stevens of the United States Supreme Court.

* Director of Litigation, NAACP Legal Defense & Educational Fund, Inc (LDF). Portions of this Response are inspired by, and draw upon, the amicus brief my colleagues Sherrilyn Ifill, Janai Nelson, Jin Hee Lee, Kristen Johnson, Zac Morris and I filed on behalf of LDF and ten civil rights litigating organizations in the Comcast case. I am grateful to each of them, and especially to Kristen Johnson for also reviewing and providing helpful feedback on a prior draft of this Response. However, the views expressed here are my own, and all mistakes are mine.

42 U.S.C. § 1981.
The 1866 Act broadly prohibits other forms of discrimination against African Americans as well. In addition to the same right to make and enforce contracts as white persons, all persons must also have the same right “to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” Id.
See, e.g., Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, Am. Econ. Rev. 991, 992 (2004)(finding that identical resumes sent to employers in Boston and Chicago were 50% less likely to receive a callback if the hypothetical applicant had an “African-American sounding name[]”); Desta Fekedulegn et al., Prevalence of Workplace Discrimination and Mistreatment in a National Sample of Older U.S. Workers: The REGARDS Cohort Study, 8 SSM – Population Health 1, 3–5 (2019) (showing that African Americans are far more likely than whites to experience racial discrimination in the workplace); Devah Pager & Bruce Western, Identifying Discrimination at Work: The Use of Field Experiments, 68 J. of Soc. Issues 221, 225-26 (2012) (discussing a study in Milwaukee and New York showing that white testers received callbacks or job offers at twice the rate as Black testers with identical resumes); Michelle Singletary, Shopping While Black. African Americans Continue to Face Retail Racism, Wash. Post (May 17, 2018) (discussing pervasive anti-Black racism in consumer transactions), https://www.washingtonpost.com/news/get-there/wp/2018/05/17/shopping-while-black-african-americans-continue-to-face-retail-racism/ [https://perma.cc/JPC3-QDU4]; Robert Bartlett et al., Consumer-Lending Discrimination in the FinTech Era1(Nov., 2019) (unpublished manuscript) (on file at https://faculty.haas.berkeley.edu/morse/research/papers/discrim.pdf [https://perma.cc/HJ5C-VQ4W]) (“[L]enders charge otherwise-equivalent Latinx/African-American borrowers 7.9 (3.6) [basis points] higher rates for purchase (refinance) mortgages, costing $765M yearly.”).
203 U.S. 1 (1906).
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 n.78 (1968) (citing Hodges, 203 U.S. at 18).
Barry L. Refsin, The Lost Clauses of Section 1981: A Source of Greater Protection After Patterson v. McClean Credit Union, 138 U. Pa. Law. Rev. 1209, 1219 (1990) (quoting Comment, Developments in the Law—Section 1981, 15 Harv. C.R.-C.L. L. Rev. 29, 64 (1980)).
392 U.S. 409 (1968).
No. 18-1171 (U.S. Mar. 23, 2020).
Id. at 4.
Id. at 3-4 (quoting Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 347 (2013)).
See id. at 13.
Id. at 3.
Id.
See id. at 8-9.
Jones, 392 U.S. at 432 (quoting Senator Trumbull).
Allen v. Wright, 468 U.S. 737, 755 (1984).
Comcast, slip op. at 3.
Id. at 5.
Id. at 2 (Ginsburg, J., concurring in part and concurring in the judgment).
Id. (quoting Rivers v. Roadway Express, Inc., 511 U. S. 298, 302 (1994)).
Id. at 10-11 (majority opinion).
See id. at 8-10.
See id. at 3.
See Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).
The ADEA’s private-sector provision provides:
“(a) It shall be unlawful for an employer—
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or
(3) to reduce the wage rate of any employee in order to comply with this chapter.”
29 U.S.C. § 623a(a)(1)-(3) (2018).
The federal-sector provision provides: “All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.”
29 U.S.C. § 633a(a) (2018).
See Babb v. Wilkie, No. 18-822 (Apr. 6, 2020).
Brief for Respondents at 3-5, Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, No. 18-1171 (U.S. Mar. 23, 2020).
See Brief of Amici Curiae NAACP Legal Defense & Educational Fund, Inc., and Ten Civil Rights Litigating Organizations in Support of Respondents, Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, No. 18-1171 (U.S. Mar. 23, 2020).
Comcast, slip op. at 4.
See Brief for Petitioner at 5, 16, 18, Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, No. 18-1171 (U.S. Mar. 23, 2020).
See, e.g., Miller-El v. Dretke, 545 U.S. 231, 240 (2005); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000).
Burrage v. United States, 571 U.S. 204, 211 (2014) (quoting United States v. Hatfield, 591 F.3d 945, 948 (7th Cir. 2010)).
Gen. Refractories Co. v. First State Ins. Co, 855 F.3d 152, 161 (3d Cir. 2017) (quoting Takach v. B.M. Root Co., 420 A.2df 1084, 1086 (Pa. 1980)).
See, e.g., Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts § 186 (2d ed.) (“It is by no means true that the but-for test reduces everything to a single cause.”).
Transcript of Oral Argument at 60:20-25, Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, No. 18-1171 (U.S. Mar. 23, 2020).
Arin N. Reeves, Written in Black and White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills, Nextions, https://nextions.com/wp-content/uploads/2017/05/written-in-black-and-white-yellow-paper-series.pdf [https://perma.cc/H9M8-SVFN]. This study is discussed at pp. 18-19 of LDF’s amicus brief in Comcast.
See id.
Comcast, slip op. at 5.

Recommended Citation
Samuel Spital, Response, It Could Have Been Worse, But a Statute Designed to “Break Down All Discrimination” Against African Americans Deserves Better than Comcast Corporation v. National Association of African American-Owned Media, Geo. Wash. L. Rev. On the Docket (Apr. 9, 2020), https://www.gwlr.org/it-could-have-been-worse-comcast-corp-v-natl-assn-of-african-am-owned-media/.