1/17 Understanding the *real* issue in today’s race discrimination case before the Supreme Court: a thread.
2/17 Today, the Supreme Court will hear oral arguments in Comcast v. NAAAOM, a race discrimination case under 42 U.S.C. § 1981.
3/17 As characterized by CNBC (and many other news sources), the issue before the Justices today is “how high the bar should be [in a § 1981 case] — whether [the plaintiff] has to prove that race was the sole factor or one factor among others.”
4/17 This characterization of what is at stake in Comcast—a requirement that plaintiffs show race was the *sole* cause of a defendant’s actions—is wrong, and dangerous for civil rights.
5/17 Rather, the question presented in Comcast is “Does a claim of race discrimination under 42 U.S.C. § 1981 fail in the absence of but-for causation?”
6/17 As the Supreme Court has recognized, “but for” cause does *not* require a showing of sole causation. Rather, to be a but-for cause, a consideration (like race) need only be “the straw that broke the camel’s back.” See Burrage v. United States.
7/17 “The straw that broke the camel’s back” is a *very* different standard than sole causation.
8/17 For example, consider the case of an African American employee who was late to work four times, and was fired—while his white co-workers who were late to work as often or more were not.
9/17 Under a sole cause standard, this case would be virtually impossible to win, because the employer would argue—let’s assume truthfully—that they would not have fired the employee if he had not been late to work.
10/17 But under a but-for cause standard, this case should be an easy case: white workers who did the very same thing were not fired. Race was, in the Supreme Court’s words “the straw that broke the camel’s back.”
11/17 In the real world today, discrimination cases almost always take this form—a mix of factors in which race (or some other protected class status) tipped the balance, but was not the only consideration.
12/17 A requirement to show that race was “the straw that broke the camel’s back” may be challenging to meet in these cases, but it would not be a disaster for civil rights.
13/17 A requirement that civil rights plaintiffs show that race was the “sole” cause of the defendant’s actions *would* *be* *a* *disaster.* But, it should not even be at issue in Comcast based on the question presented.
14/17 There is a risk that the Court will—as others have—conflate these two very different issues (and treat but-for cause as the same thing as sole cause). This is an important issue to watch for at oral argument.
15/17 If this does happen, progressives will be partially to blame. Though some have been careful to distinguish but-for and sole causation, others have long used the conflation of but-for and sole causation as a scare tactic to argue against the but-for cause standard.
16/17 This approach has been a mistake. For those who care about civil rights, we ought to emphasize the *small* stakes of finding but-for cause to be the standard: that even under a “but for” standard, race need only be one factor among many.
17/17 For readers who may want to know more about the difference between but-for and sole cause, check out Part III of this excellent amicus brief filed in Comcast by @SandraSperino @sachinspandya @DeborahWidiss and @AnthonyMKreis: supremecourt.gov/DocketPDF/18/1…
