The But-For Theory of Anti-Discrimination Law

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THE BUT-FOR THEORY OF ANTI-DISCRIMINATION LAW
Katie Eyer*
Discrimination law has long been in theoretical crisis. Its central

theory-disparate treatment law-has no agreed-upon core principles.
Because prevailing theories of discrimination once treated "disparate
treatment" and "discriminatory intent" as coextensive-something we
now know not to be true-it is unclear whether all "disparate
treatment" is truly proscribed. In the absence of a clear commitment to
proscribing all disparate treatment, judicial law-making has run amok.
The result has been the development of a network of technical rules that
have all but eclipsed thefactual question ofwhether discrimination took
place, and that have been devastating to discrimination plaintiffs'
success.
This Article contends that the time has come to resolve the theoretical
crisis in anti-discrimination law. In a series of recent cases, the
Supreme Court has situated the question of whether an individual or
group would have fared differently "but for" their protected class
status as the central defining question of anti-discrimination law.
Moreover, the Court has suggested that this inquiry flows from anti-
discrimination law's plain text. As such, there are compelling
arguments to be made that a true disparate treatment principle-the
but-for principle-is the textually mandated inquiry in anti-
discrimination law, and that judicial deviations from this standard are
illegitimate.
This idea-that our anti-discrimination laws must reach all contexts
where the outcome would be different "butfor" the sex, race, or other
protected class status of those affected-is simultaneously conservative
in its aspirations and potentially radical in its legal effects. Such an
* Many thanks to Michael Carrier, Jessica Clarke, Tristin Green, Guha Krishnamurthi,
Alexandra Lahav, Shannon Minter, Zalman Rothschild, D'Andra Shu, Joseph Singer, Sandra
Sperino, Michael Selmi, Brian Soucek, Charles Sullivan, and Deb Widiss for helpful
conversations and feedback regarding this project, and to the editors of the Virginia Law
Review for excellent editorial suggestions. Special thanks are owed to Jessica Clarke, Sandra
Sperino, and Deb Widiss for extensive feedback. This Article was presented at the 15th
Annual Colloquium on Labor and Employment Law ("COSELL") and at the Association of
American Law Schools 2021 Meeting and received excellent feedback from participants.
1621
1622 Virginia Law Review [Vol. 107:1621
approach comports with our often-stated commitment that all

individuals in our society be given equal opportunities, and not be
judged on the basis of their race, sex, or other protected class status.
But anti-discriminationlaw has strayedfarfrom these anti-disparate
treatment principles-and thus taking such a commitment seriously
would have truly significant effects. This Article thus suggests that
reorienting our inquiry around the factual question of whether the
outcome would be different "but for" protected class status is
importantto ensuringthat anti-discriminationlaw can achieve its basic
promises.
INTRODUCTION............................................................................ 1623
I. THE THEORETICAL CRISIS IN ANTI-DISCRIMINATION LAW ...... 1629
II. RESOLVING THE THEORETICAL CRISIS: THE BUT-FOR
PRINCIPLE ............................................................................. 1641
A. The Originsof the But-ForPrinciple............................. 1641
B. The Potentialof the But-ForPrinciple........................... 1644
C. Extending the But-For Principleto Constitutional
Law ............................................................................... 1650
III. THE RADICAL POTENTIAL OF ASKING THE FACTUAL
QUESTION OF "BUT FOR"...................................................... 1653
A. The But-For Principlein the Individual Case................ 1653
B. Revolutionizing Anti-DiscriminationLaw Through
"But For" ..................................................................... 1660
IV. THE BUT-FOR PRINCIPLE AS A HOME FOR OTHER
EQUALITY-PROMOTING DOCTRINES AND PRINCIPLES ........... 1664
A. Stereotyping Jurisprudence............................................ 1665
B. Negligent Discrimination............................................... 1670
C. DisparateImpact ............................................................ 1673
D. The "MotivatingFactor"Paradigm.............................. 1677
V. HEADWINDS TO RESOLVING THE THEORETICAL CRISIS IN
ANTI-DISCRIMINATION LAW................................................. 1681
A. ProgressiveHeadwinds .................................................. 1681
1. Opposition to Textualism.......................................... 1682
2. Opposition to Anti-ClassificationistApproaches
to Anti-DiscriminationLaw .................................... 1685
3. Opposition to the But-ForPrinciple......................... 1688
B. Legal Headwinds............................................................ 1691
1. Case Law .................................................................. 1691
2021] The But-For Theory of Anti-DiscriminationLaw 1623
a. PrecedentialObstacles to Centering
"But For"........................................................ 1692
b. PrecedentialObstacles to Applying
"But For"........................................................ 1694
2. Statutory Language ................................................... 1695
C. JudicialHeadwinds.........................................................1700
1. Not Enough Summary Judgment ............................... 1701
2. Rule Creep.................................................................1704
3. JudicialDisfavorfor Anti-DiscriminationLaw
Claims ..................................................................... 1707
CONCLUSION ............................................................................... 1709
INTRODUCTION
Discrimination law has long been in theoretical crisis. Because its core
theory-disparate treatment-was recognized at a time when "disparate
treatment" and "intentional discrimination" were believed to be one and
1
the same, anti-discrimination law's foundational cases conflate the two.
This has created a fundamental question as to disparate treatment law's
central theoretical principles. Does disparate treatment law in fact prohibit
all "disparate treatment," (i.e., all decisions in which the outcome would
have been different "but for" race, sex, or other protected class status)?
Or does it prohibit only the narrower category of "intentional
discrimination" (i.e., decisions in which protected class status played a
conscious role)?
These questions about anti-discrimination law's core principles remain
unanswered even today, with important adverse consequences for anti-
discrimination law. In the absence of a clear commitment to barring
"disparate treatment," judicial law-making has run amok. Few judges
even ask the question of whether a policy decision-or an employment
action-would have turned out differently had the individual or group
affected been white, male, or of a majority religion. 2 Instead, across both
See, e.g., Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 & n.15, 382 (1977);
see also infra notes 39-60 and accompanying text (discussing this issue in depth).
2 See, e.g., Katie Eyer, The Return of the Technical McDonnell Douglas Paradigm, 94
Wash. L. Rev. 967, 1017 (2019). In the interest of brevity, I do not always list every protected
group when giving examples of the "but for" principle. This is not intended to suggest the
exclusion of other groups from the but-for principle, and, indeed, the application of the but-
for principle would be the same across all of the various contexts in which groups have
protections under statutory or constitutional anti-discrimination law.
1624 VirginiaLaw Review [Vol. 107:1621
constitutional and statutory law, convoluted doctrines result in the

dismissal of the majority of anti-discrimination claims, whether or not
"disparate treatment" (in the literal sense) has in fact occurred. 3
This Article suggests that the time has come to address this theoretical
crisis, and recenter anti-discrimination doctrine around what ought to be
its core principles. As the very name of the doctrine suggests, "disparate
treatment" law is supposed to be centrally concerned with differential
treatment. This simple principle-that all -groups and individuals have a
right to receive the same treatment at the hands of government,
employers, and others, regardless of race, sex, or other protected class
status-is central to what anti-discrimination law is supposed to do. If our
"anti-discrimination" principles regularly absolve defendants of liability
where groups or individuals in fact would have been treated better if they
were white, or men, or non-disabled, then anti-discrimination law is not
worthy of its name.
While addressing anti-discrimination law's theoretical crisis has long
been urgent, it has recently become far more plausible. Across a series of
recent cases, the Supreme Court has articulated the view that anti-
discrimination's law's central defining principle is what I refer to in this
Article as the "but-for principle." 4 Thus, the Court has embraced the view
that where the outcome would be different "but for" the protected class
status of those affected, anti-discrimination law is violated.5 This is of
course simply another way of saying that disparate treatment (in its literal,
not technical, sense) is proscribed. As such, the Court's recent cases offer
renewed opportunities to suggest that anti-discrimination law must be
centered on a true "disparate treatment" theory, which would mandate
liability wherever differential treatment occurs (i.e., wherever the
outcome would be different "but for" protected class status).
Importantly, the Court has situated its reasoning in these cases as
founded on the "plain meaning" of anti-discrimination law's statutory
3 See infra notes 61-71 and accompanying text; Sandra F. Sperino & Suja A. Thomas,
Unequal: How America's Courts Undermine Discrimination Law 13-14, 40-44, 158 (2017).
4 Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009) (Age Discrimination in
Employment Act claim); see, e.g., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362
(2013) (Title VII retaliation claim); Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media,
140 S. Ct. 1009, 1018-19 (2020) (42 U.S.C. § 1981 claim); Bostock v. Clayton Cnty., 140 S.
Ct. 1731, 1739-40 (2020) (Title VII sex discrimination claim); see also City of L.A. Dep't of
Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (same); McDonald v. Santa Fe Trail
Transp. Co., 427 U.S. 273, 282 n.10 (1976) (Title VII race discrimination claim).
s See sources cited supra note 4.
2021] The But-For Theory of Anti-Discrimination Law 1625
text. 6 As such, they offer an unusual opportunity to argue that a true

disparate treatment principle not only resides at the core of anti-
discrimination law but also in its plain textual meaning. In a Supreme
Court where textualism is the ascendant method of statutory
interpretation, this makes it uniquely plausible to claim that a commitment
to proscribing all actual differential treatment is not only the preferred
theory of disparate treatment law but (at least for statutory anti-
discrimination law) the textually mandated one. And because disparate
treatment doctrine has typically been construed comparably across the
constitutional and statutory domains,7 such a move could have profound
impacts in the constitutional domain as well. As such, the current moment
offers unique opportunities for resolving the theoretical crisis at the heart
of anti-discrimination law and for addressing the many doctrinal
pathologies that have arisen out of it.
Ironically, if there is one major obstacle to harnessing this recent turn
in the Supreme Court's case law toward a true disparate treatment
paradigm,-it may be those who are, in theory, most committed to building
a meaningful body of anti-discrimination law. Many anti-discrimination
scholars and advocates have critiqued the but-for principle-and indeed
at times disparate treatment law in general-perceiving it as a weak
substitute for preferred theories of anti-discrimination law, such as
disparate impact and motivating factor liability.' This longstanding
opposition to the but-for principle may make anti-discrimination scholars
and advocates reluctant to draw on these cases and accompanying
theoretical principles, regardless of their potential.
6Bostock, 140 S. Ct. at 1743, 1750.

See, e.g., Richard Primus, The Future of Disparate Impact, 108 Mich. L. Rev. 1341, 1354-
55 (2010). Importantly, no textual barriers would exist to such an interpretation of the Equal
Protection Clause, which is fully consistent textually with the but-for principle. See U.S.
Const. amend. XIV, § 1 ("No state shall ... deny to any person within its jurisdiction the equal
protection of the laws."). The one major difference between disparate treatment principles in
the constitutional context and in most statutory contexts has traditionally been that the
Constitution permits the government to show they had a sufficient "interest" to justify the
discrimination. This Article addresses only the initial threshold inquiry into whether there was
discrimination-and if so, of what kind-and does not address the ability of the government
to justify the discrimination based on the government's interests.
8Indeed, in 2013, this Author joined a brief arguing against the but-for principle and in favor
of a motivating factor standard. See Brief of Employment Law Professors as Amici Curiae in
Support of Respondent at 5, app. 3, Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338
(2013) (No. 12-484).
But this Article suggests that the increased risks of embracing the but-
for principle are slight-and that the opportunity costs of not doing so are
considerable. The opportunity to recenter disparate treatment law around
what should be its core theoretical commitment is not one we ought to
take lightly. Without such a core theoretical commitment, we can expect
to continue to see an anti-discrimination law without any central rudder,
overrun by judge-made doctrines, and highly susceptible to individual
judicial biases. 9 Punitive or harmful government policies that would not
have been adopted "but for" the (minority) race of those affected will
continue to proliferate and go unremedied.' Employment decisions that
treat women, minorities and members of the LGBTQ community more
harshly than those who are men, white, cisgender and straight will
continue to be evaluated-and often dismissed-under a network of
doctrines that bear little relationship to whether differential treatment
occurred."
In contrast, an embrace of the but-for principle-and centering it as
anti-discrimination law's core commitment-offers myriad concrete
opportunities to argue for a more sensible and elegant approach to anti-
discrimination law. Under the but-for principle, our foundational inquiry
ought to be a simple and factual one: would the outcome have been
different "but for" the race, sex, or other protected class status of those
adversely affected? While in many cases answering this factual question
may be difficult-just as it is in, for example, tort claims-the procedure
for doing so is straightforward. The fact finder (jury or judge) ought to
consider all of the relevant evidence and consider whether it appears, by
a preponderance of the evidence, that a different outcome would have
resulted had the protected class status of those affected been different. For
example, would the Voter ID law have been passed, if those it had been
likely to disenfranchise were overwhelmingly white? Or would a man
9 See generally Sperino & Thomas, supra note 3, at 58-83 (describing in detail the judge-
made doctrines that the courts use to routinely dismiss discrimination claims); Katie Eyer,
That's Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96
Minn. L. Rev. 1275, 1276 (2012) (noting that dismissals on summary judgment and motions
to dismiss are "extremely common in discrimination litigation, accounting for a full 86% of
litigated outcomes").
10 See, e.g., Petula Dvorak, We Scorned Addicts When They Were Black. It Is Different
Now That They Are White, Wash. Post (Apr. 12, 2018),
https://www.washingtonpost.com/local/we-hated-addicts-when-they-were-black-it-is-
different-now-that-they-are-white/2018/04/12/cd845f20-3e5b-11 e8-974f-
aacd97698cefstory.html [https://perma.cc/E49E-ZSGX].
" See Sperino & Thomas, supra note 3, at 1-4.
2021 ] The But-For Theory of Anti-DiscriminationLaw 1627
have been assumed to be uncommitted to work-and thus denied a

promotion-simply because he had small kids?
Centering this approach has the potential to address many of the
pathologies that currently plague both statutory and constitutional anti-
discrimination law. The search for a particular individual bad actor (or
actors) becomes far less relevant if the but-for principle is the central
defining principle of disparate treatment doctrine since the question can
be asked without defining the precise role of particular individuals in
2
producing the discriminatory action. So too, the search for a strong form
of self-aware conscious intent should not be dispositive if our central
focus is on whether the outcome would have been different "but for" the
protected class of those affected. Self-aware intent certainly may be
helpful in proving "but for" causation, but it is only one of many ways
that but-for causation can be shown. 13 Finally, widespread recognition of
the but-for principle as the central defining feature of disparate treatment
doctrine would provide an opportunity to address the myriad technical
doctrines that currently result in the dismissal of numerous statutory anti-
discrimination claims, without ever asking the core question of whether
discrimination took place.14
In addition to providing the opportunity to address many of anti-
discrimination law's pathologies, the but-for principle could also provide
a stronger foundation for many of anti-discrimination law's equality-
promoting doctrines and scholarly ideas. As the case of Bostock v.
Clayton County demonstrates, the stereotyping principle-long critiqued
by some for its lack of statutory foundation 5-can be situated
comfortably within the but-for principle, offering it renewed vigor and
12 Cf. McCleskey v. Kemp, 481 U.S. 279, 293-95 (1987) (rejecting Equal Protection claim
in part on the grounds that statistical study could not identify the actors who engaged in
discrimination).
13 Cf. Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment
Discrimination Law: Implicit Bias and Disparate Treatment, 94 Calif. L. Rev. 997, 1029-38
(2006) (describing aspects of disparate treatment doctrine that assume the existence of a self-
aware discriminatory actor).
" See generally Sperino & Thomas, supra note 3 passim (detailing such doctrines and their
impact on anti-discrimination litigants); Eyer, supra note 9, at 1276 (noting that dismissals of
plaintiffs' claims at motions to dismiss and summary judgment account for 86% of litigated
outcomes in discrimination cases); Eyer, supra note 2, 969-72 (describing the ways in which
technical rules attached to the McDonnell Douglas paradigm are used to dismiss anti-
discrimination claims).
" See, e.g., Hamm v. Weyauwega Milk Prods., 332 F.3d 1058, 1066-67 (7th Cir. 2003)
(Posner, J., concurring).
promise.1 6 Similarly, the theory of "negligent discrimination"-long

argued for by some anti-discrimination scholars"-becomes largely
unnecessary under a but-for discrimination regime.18 A true but-for
standard would also effectuate many-though certainly not all-goals of
other equality-promoting doctrines, such as motivating factor and
disparate impact.19
As such, there are many potential benefits to embracing the but-for
principle as the theoretical core of disparate treatment doctrine and
relatively few genuine drawbacks. Indeed, many of the sources of
opposition have rested on misconceptions about what "but for" demands
or permits (including, for example, misconceptions that a but-for standard
effectively requires a showing that protected class status was the sole
cause of the defendant's actions). 20 Other sources of opposition have
rested on fears that the but-for principle (or other anti-classificationist
approaches) would endanger minority-protective doctrines such as
affirmative action. 2 1 But as this Article demonstrates, much of what anti-
discrimination scholars and advocates hope to accomplish through
alternatives to the but-for principle can be achieved through the embrace
of the principle-and much of what they hope to avoid has already come
to pass. 22
The time has come to resolve the theoretical crisis in anti-
discrimination law. This Article takes up that work. The Parts that follow
describe the theoretical crisis at the heart of anti-discrimination law,
develop arguments for how it may be resolved, and suggest what the
benefits of such a resolution might be. But before proceeding to this
substantive discussion, it is important to note the role of terminology in
both generating-and ultimately solving-anti-discrimination law's
theoretical crisis. For too long we have conflated two concepts-
"disparate treatment" and "intentional discrimination"-and we ought not
to do so going forward. Thus, in this Article, when I use the term
"disparate treatment," I mean a true disparate treatment standard-that
the outcome would have been different "but for" the protected class of
16 See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1741, 1748-49 (2020).
17 See infra notes 226-29 and accompanying text.
'8 See infra Section IV.B.
19 See infra Part IV.
20 See infra Part V.
21 See infra Subsection V.A.2.
22 Id.
2021] The But-For Theory ofAnti-Discrimination Law 1629
those affected. When I refer to "intentional discrimination," I mean to

describe the narrower class of disparate treatment that is perpetrated with
discriminatory intent. 23 Both of these standards are distinct from a
"disparate impact" standard, which asks whether the burdens of a policy
or practice fall more heavily on a particular group, but in a context where
disparate treatment need not be present.2 4
The remainder of this Article proceeds as follows. Part I makes the case
that anti-discrimination law is in conceptual crisis, describes the origins
of this crisis, and details the ways that this theoretical crisis has led to
serious pathologies in contemporary anti-discrimination law. Part II turns
to the set of recent cases in which the Supreme Court has described the
but-for principle-a true disparate treatment principle-as the central
defining feature of anti-discrimination law and describes the potential of
such cases for resolving anti-discrimination law's theoretical crisis. Part
III illustrates what a factual, but-for-centered inquiry might look like in
an individual case and describes the radical systematic potential of
arguing that this simple factual inquiry must control. Part IV describes
how many of the objectives of the equality-promoting doctrines that anti-
discrimination scholars and advocates have favored can be effectuated by
turning to a true disparate treatment inquiry, via the but-for principle.
Finally, Part V addresses likely headwinds to a project of recentering anti-
discrimination law around the but-for principle, including potential
progressive objections to such a project, potential legal obstacles, and
judicial attitudes that may pose a barrier to reform.
I. THE THEORETICAL CRISIS IN ANTI-DISCRIMINATION LAW

Both practically and normatively, disparate treatment law has long
been central to American anti-discrimination law. Practically, the
overwhelming majority of anti-discrimination claims are brought via the
disparate treatment paradigm.25 Normatively, disparate treatment (i.e.,
23 Though there may be some theoretical possibility of distinguishing between "intent,"

"purpose," and "motive," (and any number of scholars have attempted to do so) I follow the
convention of the Supreme Court herein, which is to use those terms interchangeably. See
Katie Eyer, Ideological Drift and the Forgotten History of Intent, 51 Harv. C.R.-C.L. L. Rev.
1, 56 n.318 (2016).
24 42 U.S.C. § 2000e-2(k).
25 Disparate treatment is the only paradigm available in the constitutional context. See
Washington v. Davis, 426 U.S. 229, 239-48 (1976). It is also the paradigm relied on in the
overwhelming majority of statutory cases. See Ellen Berrey, Robert L. Nelson & Laura Beth
differential treatment based on race, sex, national origin, etc.) rests at the
core of what most everyday people conceive of as invidious
discrimination. 26 And yet what should be a basic first-order question-
what is the central defining principle of disparate treatment law-remains
unsettled. This has left anti-discrimination law's core theory rudderless,
with predictably problematic results for the development of anti-
discrimination law doctrine.
This problematic failure to define anti-discrimination law's core theory
has arisen from a confluence of factors attributable at least in part to the
time and place in which modern disparate treatment doctrine originated.
Though both constitutional and statutory anti-discrimination
proscriptions predated Brown v. Board of Education, modern anti-
discrimination law, and with it, modern disparate treatment doctrine, can
trace its origins to the 1960s and 1970s. 27 As the Supreme Court grappled
with the sequelae of Brown and of the Civil Rights Act of 1964, it
developed the set of doctrines, including the modern day categories of
"disparate treatment" (i.e., differential treatment based on protected class
status) and "disparate impact" (i.e., differential impact on a protected
class not resulting from disparate treatment), which continue to largely
define anti-discrimination law today. 28 But neither the Court nor legal
advocates and observers were equipped at the time with a full
understanding of how discrimination operates in the disparate treatment
context.
Rather, as scholars such as Linda Hamilton Krieger have shown,
prevailing theories of discrimination in the 1960s and 1970s understood
Nielsen, Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality 57

(2017).
26 See, e.g., Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)
(describing disparate treatment as the most "easily understood type of discrimination").

27 See, e.g., Tristin K. Green, The Future of Systemic Disparate Treatment Law, 32 Berkeley
J. Emp. & Lab. L. 395, 401-03 (2011) (describing the Supreme Court's development of
systemic disparate treatment law in the cases of Teamsters and Hazelwood in the 1970s);
Michael Klarman, An Interpretive History of Modern Equal Protection, 90 Mich. L. Rev. 213,
251-57 (1991) (describing the development of an anti-racial classification rule, i.e., an anti-
disparate treatment rule in the 14th Amendment context in the aftermath of Brown); Eyer,
supra note 2, at 974 (noting that McDonnell Douglas v. Green was one of the first disparate
treatment cases the Supreme Court decided under Title VII and describing the paradigm it
adopted).
28 See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 429-32 (1971); McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-07 (1973); Castaneda v. Partida, 430 U.S. 482, 492-95
(1977); Teamsters, 431 U.S. at 335 n.15; Davis, 426 U.S. at 238-48.
2021 ] The But-For Theory ofAnti-Discrimination Law 1631
disparate treatment as necessarily conscious and volitional. 29 Thus,

disparate treatment was conceived of as arising from the intentional
behavioral manifestations of prejudice. 30 For this reason, disparate
treatment was widely assumed to be coextensive with so-called
"intentional discrimination"-an assumption no doubt bolstered by the
commonality of explicit and extreme exemplars of bigotry during this era
of responses to Brown.3 1 Against this backdrop, the conflation of
"disparate treatment" and "intentional discrimination" made sense-
"intentional discrimination" was understood to exhaust the full category
of contexts in which an individual had been treated differently based on
their race, sex or other protected class status.
But this concept of disparate treatment-as self-aware differential
treatment arising from prejudice-has since been shown to be
fundamentally incomplete. Rather, as we now know disparate treatment
can, and often does, occur without self-aware intent accompanying it.32
Even those who are explicitly biased often will not perceive the ways in
which their biases impact their perception-and thus may perceive their
ultimate actions as neutrally justified based precisely on their biased
beliefs. 33 For example, a racially bigoted supervisor is likely to genuinely
perceive a Black worker as an inferior employee and notice his mistakes
with far more commonality than he notices those of a white employee.
And, as scholars have shown, the disconnect between disparate treatment
and "intent" goes much deeper, given that even those who consciously
reject such biases may nevertheless behaviorally manifest bias as a result
of racial anxiety, cognitive processing biases, and deeply engrained
societal stereotypes.3 ' As such, we know today that "disparate treatment"
29 See Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach
to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161, 1176 (1995).
30 Id.
31 Of course, even during the 1950s and 1960s, many racist actors believed their actions
were justified by race-neutral factors. See, e.g., Nancy Maclean, Freedom Is Not Enough: The
Opening of the American Workplace 49-50, 54-55, 67, 252 (2006); Katie Eyer, The New Jim
Crow Is the Old Jim Crow, 128 Yale L.J. 1002, 1025-31 (2019).
32 See Krieger, supra note 29, at 1187-88; Charles R. Lawrence 111, The Id, the Ego, and
Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 329-31 (1987);
Rachel D. Godsil & L. Song Richardson, Racial Anxiety, 102 Iowa L. Rev. 2235, 2247-56
(2017) (arguing that anxiety about being seen as racist or being profiled can result in disparate
treatment).
3 See, e.g., Eyer, supra note 31, at 1047-50.
14 See sources cited supra note 32.
can and does occur, even where "intent"-at least in the strong sense of a
self-aware discriminatory actor-does not exist.
It is important to emphasize that this form of disparate treatment (i.e.,
disparate treatment in the absence of strong self-aware intent) remains
disparate treatment, rather than disparate impact, as that doctrine has
been defined. For example, in a situation where a police officer shoots a
Black man because he perceives him as more dangerous based on his race,
that is disparate treatment, even if the officer does not consciously
perceive himself to be motivated by race. Similarly, a large employer that
systematically taps men, rather than women, for promotion, because men
are perceived of (because of their sex) as "management material" has
engaged in disparate treatment, even if the decision-makers involved are
unaware of the role that sex played in their decision-making. The key
question is would the outcome have been different "but for" the sex, race
or other protected class status of those affected? If so, disparate treatment
has indeed occurred.
In contrast, a true disparate impact model asks a different question.
Disparate impact doctrine imposes no requirement that the policy or
practice at issue was the result of disparate treatment, but instead simply
asks if it has a differential impact on a protected group (by race, sex,
etc.). 35 If the policy or practice produces such a differential impact,
disparate impact doctrine then asks the question of whether there is some
substantial justification for the policy or practice. 36 Finally, the plaintiff
has the opportunity to show that even if the policy is justified by neutral
factors, there is some alternative practice that would have a lesser impact
but would equally meet the defendants' objectives. 37 Thus, although
disparate impact doctrine shares with a true disparate treatment paradigm
a lack of a requirement of self-aware intent, it does not require a showing
that the outcome would have been different "but for" the protected class
status of those affected.
As such, it is clear today that there are two potential alternatives to a
disparate impact regime-"disparate treatment" and "intentional
discrimination"-alternatives that are not coextensive. But this set of
35 See 42 U.S.C. § 2000e-2(k); Ricci v. DeStefano, 557 U.S. 557, 577-78 (2009).
36 See sources cited supra note 35; see also Tex. Dep't of Hous. & Cmty. Affs. v. Inclusive
Cmty. Project, Inc., 576 U.S. 519, 533, 541 (2015) (describing the disparate impact standards
in the context of a Fair Housing Act case).
understandings was not yet widespread in the 1960s and 1970s. 38 Thus,
our foundational disparate treatment cases reflect the prevailing
assumptions of the time-that disparate treatment and "intentional
discrimination" were one and the same. For example, in the constitutional
context, cases like Washington v. Davis-the seminal case which has
been understood to impose an intent standard-identify only one possible
alternative to a pure disparate impact standard, "discriminatory
39
purpose." But as the context of cases like Davis and its progeny make
clear, the Court did not consider itself to be opting for a purpose or intent
standard instead of a "disparate treatment" standard.40 Rather, the Court's
only aim in Davis was to reject a pure disparate impact standard in the
Equal Protection context-something it (erroneously) assumed was the
equivalent of a purpose inquiry.4 1
Similarly, early disparate treatment cases from the Title VII context
make clear that the Court understood itself to be defining the parameters
for a "disparate treatment" (as distinguished from a disparate impact)
paradigm but did not grapple with the possibility that disparate treatment
and "intentional discrimination" might not be coextensive. For example,
early cases in the individual disparate treatment context under Title VII
explicitly endorse a true disparate treatment standard, opining that "[t]he
central focus of the inquiry in a case such as this is always whether the
employer is treating 'some people less favorably than others because of
their race, color, religion, sex, or national origin,"'-while also
42
interchangeably referring to requirements of "motive" or "intent." So
38 See sources cited supra notes 29-31 and accompanying text.

39 426 U.S. 229, 237-48 (1976).
40 See id.; see also Ralph Richard Banks & Richard Thompson Ford, (How) Does
Unconscious Bias Matter?: Law, Politics, and Racial Inequality, 58 Emory L.J. 1053, 1090-
94 (2009) (making a similar observation).
41 See sources cited supra note 40. Such cases must also be understood against a backdrop
in which inquiries into intent were traditionally prohibited in Equal Protection doctrine,
something that could have effectively eviscerated Brown v. Boardof Education's guarantees.
See Eyer, supra note 23, at 4-5, 8-22, 53-54 n.305; see also Banks & Ford, supra note 40, at
1092 (making a similar observation). Thus, the focus on discriminatory intent or purpose in
Davis and other contemporary cases must be understood at least in part as arising from a desire
to ensure that intent was a permissible basis for constitutional invalidation. Banks & Ford,
supra note 40, at 1092-93.
42 Furmco Constr. Corp. v. Waters, 438 U.S. 567, 577, 579-80 (1978) (including the above-
quoted language, but also later referring to the relevant question as the issue of the employer's
"motive" or "intent" when discussing the admissibility of certain evidence) (citations omitted);
see, e.g., U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715 (1983) (stating that the relevant
inquiry is "[whether] the defendant intentionally discriminated against the plaintiff' but then
too, such cases adopt an approach to the evidentiary structure and the
relevance of particular categories of proof that is consistent with a true
"disparate treatment" regime, without questioning whether such an
approach could reliably detect intent. 43 Even when requested by
defendants to address the question of whether "disparate treatment" could
exist independent of "discriminatory intent" in early statutory cases, the
Court simply ignored the question, apparently not perceiving any possible
distinction between the two.44
Thus, early individual disparate treatment cases in both the statutory
and constitutional context display a conceptual confusion of disparate
treatment and intentional discrimination. But the conflation of "disparate
treatment" with "intentional" discrimination is perhaps most apparent in
the Court's systemic disparate treatment cases of the same time. As the
Court developed the modern framework of anti-discrimination law
around the dual categories of "disparate treatment" and "disparate
impact," it further developed different doctrinal approaches for
"systemic" and "individual" disparate treatment. 4 5 As to the former
category, in which the allegation is that the defendant regularly and
systematically engaged in disparate treatment, the Court adopted a
method of proof, i.e., expected value statistics, that-while wholly
consistent with a true "disparate treatment" paradigm-can say little
about discriminatory intent. 46
As such, the central paradigm that continues to control the adjudication
of systemic disparate treatment cases today relies on properly constructed
immediately thereafter stating that the relevant inquiry is whether "the employer [is] treating
'some people less favorably than others because of their race, color, religion, sex, or national
origin."').
43 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-07 (1973); see also Banks
&
Ford, supra note 40, at 1073-80 (explaining that nothing in McDonnellDouglas turns on how
disparate treatment came about, whether from conscious or unconscious bias).
44 Furnco, 438 U.S. at 574 n.6; see also sources cited supra note 42.
4 See, e.g., Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 357-61 (1977).
46 See, e.g., id. at 337-40; Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-09,
(1977); Castaneda v. Partida, 430 U.S. 482, 495-96, 496 n.17; see also Green, supra note 27
at 401-03, 411-17 (detailing the reasons why expected value statistics approach embraced in
Teamsters and Hazelwood, which has formed the crux of systemic disparate treatment
liability, does not necessarily allow a showing of purposeful discrimination). In some contexts
today, more sophisticated statistical methods, like regression analysis, take the place of
expected value in systemic disparate treatment contexts. See, e.g., Bazemore v. Friday, 478
U.S. 385, 398-401 (1986) (Brennan, J., concurring in part). However, for similar reasons,
regression analysis also would be incapable of detecting intent as opposed to disparate
treatment.
2021 ] The But-For Theory ofAnti-Discrimination Law 163 5
statistical design to ask the question of whether the "expected value," i.e.,
the expected numbers of a particular group receiving better or worse
outcomes in a particular context, is one that is likely to have resulted
absent disparate treatment. 47 Imagine, for example, that 50% of qualified
applicants for 100 teaching positions are African American, but that only
10% (10) of those hired are. 48 Assuming that all relevant non-racial
considerations have been accounted for in defining the relevant applicant
pool, we would have an "expected value" of 50 African American
teachers hired. 49 Statistical tests can then identify, based on sample size
and other considerations, whether this gap of 40 is statistically significant,
meaning that it is highly unlikely to have occurred absent disparate
treatment based on race. 0
Importantly this expected value methodology does not allow one to
identify intent, as opposed to disparate treatment.5 The biased decision-
maker who perceives African American candidates as less qualified, less
friendly, or less competent may well be unaware of the role that race is
playing in their decision, even as it produces disparate treatment on a
systematic scale, which the expected value test would detect. 2 Indeed,
history has shown that even among those who express explicit biases
openly, many may genuinely believe their actual decisions-which treat
minority groups differently-are based in the reality of non-invidious
factors.5 3 It is for this reason that early in the Civil Rights era, many
members of the white establishment could argue, and apparently
genuinely believe, that little actual disparate treatment existed, even as
they systematically perpetrated such disparate treatment.54
Nevertheless, the Court's seminal systemic disparate treatment cases-
like its seminal individual disparate treatment cases-do not address this
47 See generally Dianne Avery, Maria L. Ontiveros, Roberto L. Corrada, Michael Selmi
&
Melissa Hart, Employment Discrimination Law: Cases and Materials on Equality in the
Workplace 205-07 (8th ed. 2010) (describing "expected value" statistics but referring to it as
the "standard deviation" method).
'8 Id.
49 Id.
50 Id.
5I See generally Green, supra note 27, at 411-17 (detailing the ways that imposing a purpose
or intent requirement in systemic disparate treatment "would substantially alter the . . . use of
statistics [i.e., expected value statistics] endorsed by the Court and relied on by lower courts
and litigants for decades").
5 See sources cited supra note 31 and accompanying text.
54 Id.
tension, apparently because the Court was unaware it might exist. Thus,
seminal cases from both the statutory and constitutional context-such as
Teamsters, Hazelwood, and Castaneda-wholeheartedly endorse the
expected value methodology, while simultaneously opining that "[p]roof
of discriminatory motive is critical" for disparate treatment cases.55 As
the context of such cases make clear, the Court's objective in stating that
motive was important was, as in the individual disparate treatment
context, simply to distinguish disparate treatment from disparate impact.56
But the result was to conflate disparate treatment with "intentional
discrimination," leaving a profound theoretical conflict at the heart of
discrimination law.
This theoretical conflict has continued into the present day. Even in
contemporary cases, the Supreme Court has continued to conflate
disparate treatment with discriminatory intent and has failed to recognize
that more than one alternative to a pure disparate impact regime exists.5 7
Systemic disparate treatment cases continue to substantively rely on
statistical methodologies incapable of proving intent-while class
certification requirements for such cases assume intent is required. 58
Model jury instructions across the federal system employ different
standards ("disparate treatment" or "discriminatory intent") in charging
juries on the ultimate question in discrimination claims.5 9 Casebooks and
scholarly articles express a wide variety of mutually inconsistent
perspectives on what the core principles of disparate treatment law
ss See Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 324, 335-40, 335 n.15 (1977)
(accepting expected value statistical methodology as the central proof in a systemic disparate
treatment case, despite suggesting that discriminatory intent was the central requirement, in a
seminal Title VII systemic disparate treatment case, in which the court ruled on the systematic
non-hiring of Black and Spanish-surnamed drivers for "over-the-road" driver positions); see
also Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-09, 308 n.13 (1977) (applying
the same methodology in the context of allegations of teacher non-hiring on the basis of race);
Castaneda v. Partida, 430 U.S. 482,495-97, 496 n.17 (1977) (applying the same methodology
in the context of constitutional allegations of systemic disparate treatment against Mexican-
Americans in grand jury selection).
56 See Teamsters, 431 U.S. at 336 n.15.
1 See, e.g., Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1345, 1354-55 (2015);
Raytheon Co. v. Hernandez, 540 U.S. 44, 52-55 (2003).
58 See Green, supra note 27, at 405-17.
59 Compare Third Circuit Model Jury Instructions, 42 U.S.C § 1981, at 12-13 (Mar. 2018),
http://www.ca3.uscourts.gov/sites/ca3/files/6_Chap_6_2018_March.pdf (intentional
discrimination jury instruction), with Seventh Circuit Model Jury Instructions, § 3.01, at 59
(2017), http://www.ca7.uscourts.gov/pattern-jury-instructions/7th_cir_civilinstructions.pdf
[https://perma.cc/8TKA-QV29] (disparate treatment jury instruction).
actually are, and whether the Supreme Court has embraced an "intentional
discrimination" or a true "disparate treatment" standard. 60
This continuing theoretical conflict has had important consequences.
In the statutory context, detethered from any core principle, judicial
lawmaking has run amok. Especially in the lower courts (where the vast
majority of discrimination cases are heard), the process of adjudicating
anti-discrimination claims bears virtually no relationship to any ultimate
question of discrimination-perhaps because it is not clear what that
ultimate question is. 6 1 Instead, judges deploy a wide array of technical
doctrines to, as Professors Sandra Sperino and Suja Thomas put it, "slice
and dice" claims, frequently leading to dismissal before trial. 62 In the
absence of a core central question to discipline the disparate treatment
inquiry, judges have felt free to develop legal doctrines that turn on
technical formalities, rather than the factual question of whether
discrimination took place. 6 3
Thus, for example, doctrines like the "same actor" doctrine are applied
by judges to dismiss cases where the same manager hired and fired the
plaintiff, even where there is compelling evidence that that manager was
bigoted. 4 Courts routinely dismiss cases for failure to show that an
employer's articulated reason for the decision is wholly false-even
65
where there is other persuasive evidence of disparate treatment. The
60 Compare Avery et al., supra note 47, at 89 (describing "discriminatory intent" as "the key
element in a disparate treatment" case), and David Benjamin Oppenheimer, Negligent
Discrimination, 141 U. Pa. L. Rev. 899, 923 (1993) (characterizing "conscious intent to
discriminate" as "the touchstone" of the Supreme Court's disparate treatment case law), with
Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric,
86 Geo. L.J. 279, 287-89, 291-92, 294 (1997) (arguing that the Supreme Court's cases are
best understood as instantiating a causation-focused disparate treatment standard), and Noah
D. Zatz, Managing the Macaw: Third-Party Harassers, Accommodation, and the
Disaggregation of Discriminatory Intent, 109 Colum. L. Rev. 1357, 1374-75 (2009) (same).
62 See, e.g., Sperino & Thomas, supra note 3, at 152-55 (quoting Michael J. Zimmer, Slicing
& Dicing of Individual Disparate Treatment Law, 61 La. L. Rev. 577, 591 (2001)); Berrey,
Nelson & Nielsen, supra note 25, at 63.
63 See Eyer, supra note 2, at 977-84; Sperino & Thomas, supra note 3, at 152-55.
64 See, e.g., Maybin v. Hilton Grand Vacations Co., 343 F. Supp. 3d 988, 993-99 (D. Haw.
2018) (awarding summary judgment based on the "same actor" inference in an age
discrimination case, despite the fact that the manager regularly made ageist statements about
the plaintiff and other sales managers during plaintiff's period of employment); see also
Sperino & Thomas, supra note 3, at 69-71 (discussing the way the "same-actor" inference is
used against plaintiffs in statutory anti-discrimination cases).
65 See, e.g., Youry v. Exec. Transp. Co., No. 11-4103, 2013 WL 4774447, at *5-6 (E.D. Pa.
Sept. 6, 2013) (awarding summary judgment because the plaintiff did not show the employer's
most compelling evidence of discrimination-explicitly biased comments

by decision-makers-is often excluded from consideration altogether
under the doctrine of "stray remarks." 66 And many circuits require that
the plaintiff identify a "nearly identical" comparator outside the protected
class, regardless of how compelling their evidence of discrimination
might otherwise be. 67 For decades, these and other technical doctrines
have regularly been used to justify awards of summary judgment and
judgment as a matter of law ("JMOL") against statutory discrimination
plaintiffs-without ever asking the central factual question of whether
discrimination took place. 68
reason was factually false-despite evidence that the decision-maker had repeatedly referred
to the plaintiff with racially derogatory remarks, including during the conversation in which
the plaintiff was terminated); see also Sandra Sperino, McDonnell Douglas: The Most
Important Case in Employment Discrimination Law 164-5 (2018) (describing this
phenomenon). Note that this lower court practice is directly contradictory to Supreme Court
precedent. See, e.g., McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n.10 (1976)
(specifically noting that the plaintiff need not prove that the alleged reason was not a real
reason, just that protected class status was a "but for" cause); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 514, 524-25 (1993) (holding that it is the factual question of discrimination, not
pretext, which is the ultimate inquiry in a Title VII case, even one brought via the McDonnell
Douglas paradigm).
66 See, e.g., Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 222-24 (5th Cir. 2001)
(awarding JMOL after a jury verdict in plaintiff's favor on pregnancy discrimination claims
and dismissing as a "stray remark" the plaintiffs supervisor's overheard statement that the
plaintiff was fired because "she's been pregnant three times in three years."); see also Sperino,
supra note 65, at 204-09 (discussing how the stray remarks doctrine is used against
discrimination plaintiffs); Sperino & Thomas, supra note 3, at 60-69 (same); Jessica A.
Clarke, Explicit Bias, 113 Nw. U.L. Rev. 505, 540-47 (2018) (same). This lower court
practice also has been at least implicitly rejected by the Supreme Court. See Reeves v.
Sanderson Plumbing Prod. Inc., 530 U.S. 133, 152-53 (2000) (reversing a lower court decision
that had applied the stray remarks doctrine to disregard damning age-related remarks and
stating that the lower court impermissibly substituted its judgment for the jury's).
67 See, e.g., Mitchell v. Mills, 895 F.3d 365, 371-72 (5th Cir. 2018) (denying plaintiffs
claim of wage discrimination because the contractors that were used as comparators were not
similar enough to the plaintiff to meet the imposed "nearly identical" standard); Suzanne B.
Goldberg, Discrimination by Comparison, 120 Yale L.J. 728, 745-55 (2011); Charles
Sullivan, The Phoenix from the Ash: Proving Discrimination by Comparators, 60 Ala. L. Rev.
191, 216-20 (2009); see also Lewis v. City of Union City, 918 F.3d 1213, 1221-29 (11th Cir.
2019) (en banc) (delineating all of the ways a comparator must be the same in order to satisfy
the circuit's standards and support a prima facie case). The Supreme Court's decision in
McDonald v. Santa Fe Trail seems to directly repudiate this approach. See McDonald, 427
U.S. at 283 n.11.
68 See, e.g., Eyer, supra note 2, at 977-85. Often, these doctrines are tied to the application
of the so-called McDonnell Douglas paradigm. For a compelling argument for why the
McDonnell Douglas paradigm should be abandoned in favor of a textualist approach to anti-
So too in the constitutional law context, technical doctrines abound that

impose severe obstacles to plaintiffs' success in bringing anti-
discrimination claims. Requirements that plaintiffs identify a
particularized actor that discriminated can impose obstacles to
challenging even amply proven disparate treatment. 69 Federal jurisdiction
doctrines such as standing, sovereign immunity, and abstention frequently
bar claims on grounds that bear no relationship to whether discrimination
took place. 70 And contradictory limitations on discovery and use of
evidence of disparate treatment or discriminatory intent continue to exist
in the doctrine, in ways that can make it virtually impossible for
constitutional discrimination plaintiffs to prove claims.71
Of course, these problems are not wholly attributable to the theoretical
crisis in disparate treatment law. But they have been substantially
exacerbated by it. Rather than being able to coalesce around a singular
straightforward critique-that the technical doctrines that bar disparate
treatment claims are inconsistent with its central principle-anti-
discrimination scholars have spent years disagreeing on what that central
principle is. 72 Moreover, many scholars-having concluded that the Court
has elected for a requirement of conscious discriminatory intent (as
opposed to simply conflating disparate treatment and intent)-have
devoted considerable energies to critiquing intent. 73 Rather than trying to
recenter disparate treatment law around its core basic principles of
differential treatment, much of the scholarly debate has revolved around
74
trying to institute alternatives like disparate impact or motivating factor.
discrimination claims, see Deborah A. Widiss, Proving Discrimination by the Text, 106 Minn.
L. Rev. (forthcoming 2021) (manuscript at 2-5).
69 See, e.g., McCleskey v. Kemp, 481 U.S. 279, 292-93 (1987).
70 See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of
Colorblindness 125-29 (2010); David Cole, No Equal Justice: Race and Class in the American
Criminal System 161-68 (1999); see also Fred O. Smith, Jr., Abstention in the Time of
Ferguson, 131 Harv. L. Rev. 2283, 2322 (2018) (discussing the ways that Younger abstention
arguments have led some courts to reject structural arguments challenging the criminalization
of poverty).
71 See, e.g., United States v. Armstrong, 517 U.S. 456, 468-70 (1996); Clarke, supra note
66, at 524-40, 547-71.
72 See, e.g., sources cited supra note 60.
73 See, e.g., Oppenheimer, supra note 60, at 967-72; Eyer, supra note 23, at 3 n.2 (collecting
sources).
74 See, e.g., Michael Selmi, Was the Disparate Impact Theory a Mistake?, 53 UCLA L. Rev.
701, 702-07 (2006) (observing and critiquing the extensive scholarly focus on disparate
impact); Charles A. Sullivan, Making Too Much of Too Little?: Why "Motivating Factor"
Liability Did Not Revolutionize Title VII, 62 Ariz. L. Rev. 357, 358-59 (2020) (describing
Ultimately, without a core defining principle to unify critiques of its

misapplication, scholarly critiques of the courts' approach to disparate
treatment doctrine have remained atomized and have not been widely
effective. 75
The consequences of disparate treatment law's theoretical crisis have
been even more evident in the political advocacy realm. Even as technical
doctrines have rendered core disparate treatment cases extremely difficult
to win, no cross-contextual movement has developed to urge the
realignment of disparate treatment law around its core principles. Rather
than a cohesive public message-that the courts are effectuating a
massive and impermissible departure from anti-discrimination law's
basic protections-advocates' critiques have also remained necessarily
atomized and inconsistent. As in the scholarly realm, technical
alternatives, like motivating factor and disparate impact, have often
produced the most vigorous advocacy messaging. 76 Critiques of the
evisceration of the core of disparate treatment itself have remained rare
and uncoordinated-and ultimately ineffective in penetrating the public
consciousness.7 7
Advocacy in the courts has similarly been hobbled. In the absence of
any clear central principle defining disparate treatment doctrine,
advocates have been stripped of what ought to be their most potent
argument: that the technical doctrines that the courts have developed
illegitimately depart from disparate treatment law's core principles.
Instead, critiques of the devastating array of technical doctrines that the
courts have developed have tended to focus on relative minutiae, like
the extensive attention paid to "motivating factor" liability in the scholarly literature and
observing that "[o]ne wonders what all the fuss is about" in view of the disappointingly small
impact that "motivating factor" has had on anti-discrimination law).
75 It is important to note that other scholars have made arguments in the past that a true
disparate treatment principle does or should reside at the heart of anti-discrimination law. See,
e.g., Selmi, supra note 60, at 287-94; Zatz, supra note 60, at 1374-75; Green, supra note 27,
at 414-17. But, in the face of the ongoing conceptual crisis in anti-discrimination law, such
arguments have yet to generate a wider movement for focusing anti-discrimination law on a
true disparate treatment standard. This Article argues that the Supreme Court's recent case
law centering the "but for" principle offers perhaps a critical opportunity to spark such a wider
movement for a true disparate treatment standard.
76 See, e.g., Sharon Dietrich, Maurice Emsellem & Catherine Ruckelshaus, Work Reform:
The Other Side of Welfare Reform, 9 Stan. L. & Pol'y Rev. 53, 67 n.51 (1998) (noting that
the Civil Rights Act of 1991 arose in significant part from the outcry in the civil rights
advocacy community over the retrenchment of disparate impact liability in Wards Cove
Packing Co. v. Atonio, 490 U.S. 642 (1989)).
77 See, e.g., Eyer, supra note 2, at 1008 & n.250, 1016.
whether a different application of the particular technical doctrine is

warranted.7 8 Such a focus on minutiae has rendered the lower courts'
persistent dismissal of discrimination claims virtually invisible, as it
attracts neither headlines nor invites Supreme Court review. 79 In the
absence of a clear central principle from which the lower courts' technical
approach to discrimination law can be said to depart, the ability to craft a
unified legal strategy has been significantly limited.
Thus, the theoretical crisis at the heart of disparate treatment doctrine
has had important adverse consequences for anti-discrimination law. But
as set out in the following Part, now may be a unique moment for
addressing this ongoing theoretical crisis. While the theoretical crisis in
anti-discrimination law has persisted for decades, recent cases offer a
unique opportunity to re-center disparate treatment law around a true
disparate treatment standard: the but-for principle.
II. RESOLVING THE THEORETICAL CRISIS: THE BUT-FOR PRINCIPLE

As set out in Part I, there has long been a theoretical crisis at the heart
of disparate treatment doctrine. This Part makes the case that now is the
time to resolve this theoretical crisis, and that contemporary cases provide
an opportunity to do so. In a series of recent cases, the Supreme Court has
embraced the notion that anti-discrimination law must be centered around
a true disparate treatment principle: the but-for principle. Moreover, it has
suggested that such a principle derives from statutory anti-discrimination
law's plain text. This series of cases thus provides an opening for anti-
discrimination advocates, scholars, and ultimately the courts to coalesce
around a true "disparate treatment" standard, thus resolving the
conceptual crisis at the heart of anti-discrimination law.
A. The Origins of the But-ForPrinciple

The but-for principle has long roots in anti-discrimination law, dating
back at least to the 1978 case of City of Los Angeles Department of Water
78 Id. at 1008; see also e.g., Plaintiff-Appellant's Reply Brief at 2-7, Kozuma v. Barnhart,
2002 WL 32102095 (9th Cir. 2002) (No. 01-16109) (arguing that the "same actor inference"
did not apply given the circumstances of the case, but not contesting the legitimacy of the
doctrine).
79 Eyer, supra note 2, at 1016.
and Power v. Manhart.80 In Manhart, the question was whether an

employer could require women to contribute more to their pension fund
than men, on the grounds that women on average live longer (and thus,
women as a class are likely to derive greater benefits from the fund as
retirees). 81 The Court easily found the answer to this question was no,
relying on Title VII's plain text.82 As the Court stated,
An employment practice that requires 2,000 individuals to contribute
more money into a fund than 10,000 other employees simply because
each of them is a woman, rather than a man, is in direct conflict with
both the language and the policy of the Act. Such a practice does not
pass the simple test of whether the evidence shows "treatment of a
person in a manner which but for that person's sex would be
different. "83
The but-for principle is, of course, a true disparate treatment principle.
It does not ask what was in the mind of the discriminator at the time of
their actions, but rather simply whether the action would have been
different "but for" the protected class status of those affected. Applying
this approach, the full span of disparate treatment is captured: if the
outcome would have been different "but for" the identity of those
affected, the but-for principle has been violated. Thus, the but-for
principle to the extent it is truly controlling-offers an opportunity to
center anti-discrimination law around a true disparate treatment principle,
rather than one focused on discriminatory intent.
But while Manhart and other early cases introduced the but-for
principle to the Court's modern anti-discrimination jurisprudence, it was
not until thirty years later that the principle came to be situated as central
to anti-discrimination law. Ironically, this increasing prominence of the
but-for principle arose as a result of a series of cases that many saw as a
retrenchment of anti-discrimination law. As described further in Parts IV-
V, infra, progressive commentators and advocates had long argued for a
so-called "motivating factor" standard (instead of a but-for standard) in
80 435 U.S. 702, 711 (1978); see also McDonald v. Santa Fe Trail Transp. Co., 427 U.S.
273, 282 n.10 (1976) (observing, two years before Manhart, that "no more is required [under
Title VII] to be shown than that race was a 'but for' cause.").
$' Manhart, 435 U.S. at 704.
82 Id. at 708-11.
83 Id. at 711 (emphasis added) (quoting Developments in the Law, Employment
Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1170
(1971)).
2021 ] The But-For Theory ofAnti-DiscriminationLaw 1643
anti-discrimination law, believing it to be easier for anti-discrimination

plaintiffs to prove. But across a series of cases, the Court found that the
central defining language of most anti-discrimination statutes requires a
different standard: a showing that the outcome would have been different
"but for" the plaintiff's protected class status.
The turn to the but-for principle began with the 2009 case of Gross v.
FBL FinancialServices, Inc.84 In Gross, the Court was asked to address
what evidence was required to apply the "motivating factor" paradigm
under the ADEA, a paradigm that the lower courts had assumed was
available in some circumstances to age plaintiffs.85 But the Court instead
interpreted the ADEA's text, which prohibits discrimination "because
of... age", as demanding but-for causation. 86 Drawing on textualist
principles, the Court opined that the "ordinary meaning" of "because
of ... age" must control: that age was the "but-for cause" of the plaintiff's
injury.87 The Court thus situated the but-for principle as the central
required showing for an age discrimination plaintiff, making them show
that their age "was the 'but-for' cause of the challenged adverse
employment action." 88
Across a series of subsequent cases, the Supreme Court and the lower
courts have expanded their textualist interpretation from Gross to other
statutes, construing similar statutory anti-discrimination language to also
connote but-for causation. 89 Even textually distinctive statutes like 42
U.S.C. § 1981 (affording "[a]ll persons . .. the same right ... to make
and enforce contracts . . . as is enjoyed by white citizens") have been
construed by the Supreme Court as textually mandating the but-for
principle. 90 Indeed, the Court has gone so far as to express the view that
the "ancient and simple 'but for' common law causation test . .. supplies
84 557 U.S. 167, 175-80 (2009).

85 Id. at 170-73.
86 Id. at 175-78 (quoting 29 U.S.C. § 623(a)(1)).
87 Id. This reasoning has been heavily critiqued by progressives, as is described more fully
infra note 93, and infra Sections IV.D and V.A.
88 Gross, 557 U.S. at 180.
89 See, e.g., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 350-52 (Title VII
retaliation provisions); Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962 (7th Cir.
2010) (Americans with Disabilities Act).
98 See Comcast Co. v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1014-19
(2020). But cf. Babb v. Wilkie, 140 S. Ct. 1168,1175-78 (2020) (holding, based on distinctive
text, that the federal sector provisions of the ADEA are violated where age is a motivating
factor, but also holding that a plaintiff must show "but for" causation in order to obtain
individualized relief).
the 'default' or 'background' rule against which Congress is normally

presumed to have legislated" in the discrimination context. 91 As such,
most commentators agree today that the vast majority of anti-
discrimination laws will be subject to the but-for principle under Gross
and its progeny. 92
B. The Potentialof the But-ForPrinciple

While many anti-discrimination advocates and scholars opposed Gross
and its progeny, this turn to the but-for principle offers considerable
opportunities for addressing the ongoing theoretical crisis in anti-
discrimination law. 93 As described supra, the but-for principle is a true
"disparate treatment" principle (as opposed to a narrower "discriminatory
intent" standard), and thus, to the extent it is controlling, can be used to
situate anti-discrimination doctrine around a "disparate treatment"
theoretical core. Moreover, the Court has described its decisions
mandating the but-for principle as resting on the textual mandates of
9" Comcast, 140 S. Ct. at 1014. Scholars have criticized both the historical accuracy of the
Court's characterization of the pedigree of the but-for causation test in tort law and the
appropriateness of its use of a tort frame in anti-discrimination law. See, e.g., Alexandra D.
Lahav, Why Justice Gorsuch Was Wrong About Causation in Comcast, 23 Green Bag 2D 205,
205 (2020) (questioning the historical accuracy of the assertion in Comcast that but-for
causation is an "ancient and simple" test); Sandra Sperino, The Tort Label, 66 Fla. L. Rev.
1051, 1052-54 (2014) (critiquing the Supreme Court's tendency to draw on tort law in
interpreting discrimination statutes). Nevertheless, this Article takes as its starting point the
assertions of the Supreme Court in recent cases such as Comcast and Nassar.
92 As Sandra Sperino has observed, the fact that Comcastwas a virtually unanimous opinion
signals that even the progressives on the Court have acceded to the controlling nature of the
but-for principle. See Sandra Sperino, Comcast and Bostock Offer Clarity on Causation
Standard, A.B.A. Human Rights Mag., Jan. 12, 2021, at 24-25.
93 Gross and its progeny have been critiqued by legal scholars on a variety of grounds. In
addition to those critiques discussed supra note 91, scholars have argued that Gross and its
progeny are not the correct reading of the relevant statutory text, that they disregarded the
legislative history of the Civil Rights Act of 1991, that the precedent of Price Waterhouse v.
Hopkins should have compelled a different result, and that they will deprive civil rights
litigants of adequate opportunity to make out their claims. See, e.g., Deborah A. Widiss,
Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation, 90
Tex. L. Rev. 859, 926-41 (2012); Leora F. Eisenstadt, Causation in Context, 36 Berkeley J.
of Emp. & Lab. L. 1, 3 n.6 (2015); James A. Macleod, Ordinary Causation: A Study in
Experimental Statutory Interpretation, 94 Ind. L.J. 957, 959-63 (2019); sources cited infra
notes 271-72. This Article takes as its starting point Gross and its progeny's endorsement of
the "but for" principle, and their description of the principle as textualist in nature, and thus
does not re-litigate methodological disputes over the principle's correctness or origins.
Substantive arguments regarding the adequacy of the "but for" principle as a vehicle for civil
rights litigation are addressed infra Parts III-V.
statutory anti-discrimination law's provisions, and indeed as representing

94
anti-discrimination law's plain or "ordinary" meaning. As such, there is
a strong argument that the text of anti-discrimination law demands a true
disparate treatment inquiry.
In an era where textualism is the ascendant method of statutory
interpretation at the Supreme Court, this type of argument may have
considerable promise in addressing the conceptual confusion at the core
of disparate treatment doctrine, and in mandating a true disparate
treatment standard. Consider, for example, the following language from
the Supreme Court's decision in Comcast Corporation v. National
Association of African American-Owned Media, addressing the Court's
reading of 42 U.S.C. § 1981:
The guarantee 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? This focus
fits naturally with the ordinary rule that a plaintiff must prove but-for
causation. If the defendant would have responded the same way to the
plaintiff even if he had been white, an ordinary speaker of English
would say that the plaintiff received the "same" legally protected right
as a white person. Conversely, if the defendant would have responded
differently but for the plaintiff's race, itfollows that the plaintiffhas not
received the same right as a white person.95
After Comcast, it seems clear that the inquiry in a § 1981 case (and any
other cases in which the but-for principle applies) should be a simple and
factual one: would the outcome have been different "but for" the
plaintiff's race? Or as the Court stated it otherwise, if we consider the
counterfactual "what would have happened if the plaintiff had been
white," what do we conclude? 96 Since intentional discrimination will
ordinarily result in disparate treatment, this of course is a question that
discriminatory intent may be relevant to answering. But it is ultimately a
far more capacious standard. Thus, cases like Comcast and others
mandate-as a matter of anti-discrimination law's "ordinary" meaning-
94 See, e.g., Comcast, 140 S. Ct. at 1015; Nassar, 570 U.S. at 350-52; Gross v. FBL Fin.
Servs., 557 U.S. 167, 175-78 (2009).
95 Comcast, 140 S. Ct. at 1015 (emphasis added) (quoting 42 U.S.C. § 1981(a)).
96 Id.
that a true "disparate treatment" standard, the but-for principle, be

dispositive.97
The potential of this type of argument can be seen already in the recent
case of Bostock v. Clayton County.98 Bostock addressed the issue of
whether discrimination against LGBT employees is "because of... sex"
and thus prohibited under Title VII. 99 Much to the surprise of many
commentators, the Bostock case resulted in a 6-3 win for the plaintiffs, in
an opinion authored by the textualist Justice Neil Gorsuch.1 00 Embracing
the textualist arguments of the plaintiffs and their amici (founded on
Gross, Nassar, and Manhart), the Court recognized that the but-for
principle controlled and that each and every instance of sexual orientation
and gender identity discrimination would not occur "but for" the sex of
employee. 10 1 Thus, for example, a woman who is fired for marrying her
female partner, would not have been fired "but for" her sex-an employer
would not object to her actions if she were a man.' 0 2 So too, a transgender
woman who is fired for, for example, wearing feminine clothing, or
identifying as a woman, would not have been terminated if the employer
perceived her as a woman. 0 3 In all instances of anti-LGBT
discrimination, therefore, the but-for principle is violated.
While Bostock involved what may seem to some like a very specialized
application of the but-for principle (whether anti-LGBTQ discrimination

98 140 S. Ct. 1731, 1738-43 (2020).
99 Id. at 1738-39 (quoting 42 U.S.C. § 2000e-2(a)(1)).
100 Id. at 1736-37; see also Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev.
265,
279 & n.84, 303 (2020) (observing that "many observers" predicted that the Supreme Court
would reject the claim of LGBTQ employees, but that a few, including this author, predicted
that it would rule for the plaintiffs on textualist principles).
0 Bostock, 140 S. Ct. at 1738-43; see also Brief for Respondent Aimee Stephens at 21-29,
Bostock, 140 S. Ct. 1731(No. 18-107) (making the textualist "but for" argument that was
subsequently largely embraced by the Court); Brief of Statutory Interpretation and Equality
Law Scholars as Amici Curiae in Support of the Employees at 4-12, Bostock, 140 S. Ct.
1731(Nos. 17-1618, 17-1623, 18-107) (same). In the interest of full disclosure, this argument
was originally developed by this author in a 2019 article, Statutory Originalism and LGBT
Rights. See Katie Eyer, Statutory Originalism and LGBT Rights, 54 Wake Forest L. Rev. 63,
73-80 (2019); see also Josh Block (@JoshABlock), Twitter (June 15, 2020, 11:34 AM),
https://twitter.com/JoshABlock/status/1272552949835800576 [https://perma.cc/X2QE-
C7FM] (crediting the Wake Forest article with heavily influencing the Court's reasoning); In
Lieu of Fun, Episode 81: Leah Litman and Anthony Michael Kreis, Youtube, at 12:57 (June
15, 2020) https://www.youtube.com/watch?v-zbxMG9Y9eB4&t-777s
[https://perma.cc/LT3R-JPX5] (same, amicus brief).
102 Bostock, 140 S. Ct. at 1742.
103 Id. at 1741-42.
is covered by Title VII), in many ways it is emblematic of the potential of

the but-for principle to address anti-discrimination law's conceptual
confusion more broadly. As the Bostock defendants pointed out, they did
not act with a conscious intention to discriminate based on sex, but instead
with an intention to discriminate based on sexual orientation and gender
identity. 1 4 Under the historically conceptually confused approach to
disparate treatment doctrine, this argument appears be a difficult one to
rebut-is differential treatment sufficient, or is self-aware intent to
discriminate based on sex required? And yet, because of the advent of
cases like Gross and Nassar, plaintiffs and their amici were able to argue
that the but-for principle was textually mandated, and must control.'0 5
Ultimately, their arguments persuaded six justices of the Court, in a result
that few observers expected. 106 Thus, while the issue in Bostock was in
some ways unique, the approach of the plaintiffs (focusing on "but for"
as the textually mandatory core of the inquiry) and the potential result
(success for anti-discrimination plaintiffs) was not.
But if Bostock demonstrates the potential of the but-for approach, it
also demonstrates the likely near-term limitations of such an approach-
and thus the need to seize the opportunity to build a longer-term
movement for "but for." Because of existing case law conflating disparate
treatment and discriminatory intent, the Court majority in Bostock could
not entirely disregard intent. Rather, the Court acknowledged that the
Court's prior holdings (though not the statutory text) imposed a
requirement that "the difference in treatment based on sex must be
intentional." 1 07 However, importantly, the Court went on to define the role
of intent in "disparate treatment" cases in such a way that it does not
detract from the but-for principle. Instead, the Court defined the intent
required as an intentional employer decision to take an adverse action
against a particular employee or group of employees-actions which the
employer would, in turn, not have taken "but for" the sex of the
employees.1 08 Thus, the intent required of the employer is simply the
intent to subject employees to differential adverse action from other
104 See, e.g., Brief for Petitioners Altitude Express, Inc., and Ray Maynard at 13-18, 38-39,
Bostock, 140 S. Ct. 1731(No. 17-1623).
05 See Brief for Respondent Aimee Stephens, supra note 101 at 28-29; Brief of Statutory
Interpretation and Equality Law Scholars as Amici Curiae in Support of the Employees, supra
note 101 at 4-12.
107 See Bostock, 140 S. Ct. at 1740.
08 Id. at 1741-43, 1745--46.
employees (i.e., to engage in "discrimination" in the literal sense of

differentiating adversely), not a self-aware intent of the role of protected
class status in their decision.10 9
This formulation of intent may seem overly complicated and confusing
(and indeed, I suggest below that it would be better to ultimately focus
exclusively on "but for"), but it makes some sense if the requirement of
intentional action is conceptualized simply as the boundary marker
between what Noah Zatz has described as "internal" and "external"
membership causation.10 Consider, for example, the hypothetical
identified by Mitch Berman and Guha Krishnamurthi in their article,
Bostock is Bogus:
Suppose Libby intends to dine one evening at Riley's Restaurant. En
route to Riley's, Libby, a member of the local Libertarian Party, stops
at the Party's office for a short organizational meeting. When arriving
at Riley's, Libby is chagrined to learn that the restaurant's last table was
taken minutes earlier and that it will be accommodating no more diners
that evening. 11
As Berman and Krishnamurthi point out, in this scenario, Libby's
partisan membership is in some sense a "but for" cause of her being
unable to secure at table at Riley's-it is what led to her arriving late,
without which a table would have been secured. 1 2 And yet our intuitions
are that no sensible judge would find disparate treatment on these facts
since her partisan status played no role in the restaurant'sactions.1 3
By
specifying the action to which "but for" causation must be linked-an
intentional action by the defendant-Bostock's formulation of intent
makes clear that in this circumstance Libby cannot prevail. Because the
restaurant did not take any intentional action that it would not have taken
109 Id.
"0 See Zatz, supra note 60, at 1376-78.
"' Mitchell N. Berman & Guha Krishnamurthi, Bostock Was Bogus: Textualism, Pluralism,
and Title VII, 97 Notre Dame L. Rev. (forthcoming 2021) (manuscript at 28).
112 Id.
113 Id. Berman and Krishnamurthi go on to reach what I think are erroneous conclusions
about the "but for" principle's capability of resolving the question at issue in Bostock. Id. at
28-29. But I agree with them that this scenario would not be actionable, albeit for reasons that
are distinctive from their own.
"but for" Libby's partisan status, membership causation is external, and

Libby cannot prevail. 1 4
Bostock's formulation of intent thus serves to hold the line between
internal and external membership causation while simultaneously
articulating a standard that is consistent with a true disparate treatment
paradigm.1 5 But although Bostock's formulation of intent is consistent
with a true disparate treatment paradigm-and may have been necessary
in Bostock as a way of dealing with the longstanding conflation in the case
law of discriminatory intent and disparate treatment-in the longer term,
it seems likely to only further the conceptual confusion surrounding anti-
discrimination law. Bostock's language on this issue is opaque and was
confusing to many commentators, even those who are deeply steeped in
anti-discrimination law. 1 ' To the extent we wish to resolve disparate
treatment law's conceptual crisis, Bostock's formulation of intent seems,
in the long term, a poor vehicle. Thus, ultimately it seems likely that the
goal of advocates and commentators ought to be a paradigm focused
exclusively on the but-for principle." 7
What would it take to achieve this goal? Like most other major efforts
to shift the law, it seems likely that such an objective will necessarily be
multi-faceted and iterative, and it would require building a movement for
"but for." As described more fully in the Parts that follow, individual
cases offer opportunities big and small for putting forward but-for
arguments in ways that would benefit individual anti-discrimination
plaintiffs. Such repeated deployment of the but-for standard-coupled
with arguments that it is textually mandatory-is no doubt an important
part of shifting the discourse in anti-discrimination toward widespread
recognition of the but-for principle as controlling. But as important is the
wider buy-in and messaging of anti-discrimination advocates and scholars
114 See Bostock, 140 S. Ct. at 1741-43, 1745-46; see also Zatz, supra note 60, at 1377
(noting that internal membership causation is essential to disparate treatment claims).
115 As Zatz points out, there are some areas of anti-discrimination law that do not require
internal membership causation, but disparate treatment doctrine is not among them. See Zatz,
supra note 60, at 1373-82 (demonstrating that while disparate treatment requires internal
membership causation, third-party harassment cases do not require internal membership
causation for the plaintiff to prevail).
116 In my conversations with other anti-discrimination law scholars, many have expressed
that they found this part of the Court's opinion confusing and unpersuasive.
117 To the extent that some principle is needed to avoid scenarios like the one that Berman
and Krishnamurthi postulate in the disparate treatment context, the concept of internal and
external membership causation, which Zatz originated, seems a more helpful and intuitive way
of addressing the issue than the formulation of intent at issue in Bostock.
to such a project. Movement building and public messaging matter. To

the extent anti-discrimination scholars and advocates speak with a
cohesive voice that the but-for principle is the central defining feature of
anti-discrimination law, they are far more likely to be heard.
As set out in the Parts that follow, such a movement could be critical
to restoring the potential of disparate treatment law, and with it, anti-
discrimination law more broadly. Currently, the public believes that they
are protected against being treated differently by government, by
employers, and by public accommodations, because of their race, sex, or
other protected class status. The myriad of technical doctrines that ensure
that the vast majority of discrimination plaintiffs lose-regardless of
whether their protected class status was a "but for" cause of their harm-
are largely invisible in the absence of a widespread movement to
delegitimate them. 11 8 And such a movement cannot take place without a
central conception of what discrimination law should be asking, as
opposed to simply what it should not. The but-for principle provides such
a conception and thus the opportunity to build a movement for a true
disparate treatment principle.
C. Extending the But-ForPrincipleto ConstitutionalLaw

Recent cases such as Gross, Nassar, Comcast, and Bostock afford an
important opportunity to take up the longstanding theoretical crisis at the
heart of anti-discrimination law and to resolve it in favor of a true
disparate treatment standard. But all of these cases are statutory, so the
question remains, how might such arguments fare in the constitutional
law context? As set out below, Gross, Nassar,Bostock, and especially the
Court's recent decision in Comcast do offer opportunities for arguing that
constitutional anti-discrimination law under the Equal Protection clause
must also follow the but-for principle."1 9 But those arguments are at least
somewhat more attenuated and complex. It is thus doubly critical in the
constitutional law context that such arguments be a part of-and not
isolated from-a broader movement to instantiate the but-for principle as
the central defining feature of anti-discrimination law.
"8 See, e.g., Eyer, supra note 2, at 1016.

v19
Under the current approach to Equal Protection doctrine, government is still afforded an
opportunity to justify discrimination under an appropriate level of scrutiny even after
discrimination has been shown. This discussion pertains exclusively to proving discrimination
at the first step of the constitutional analysis.
2021 ] The But-For Theory ofAnti-Discrimination Law 165 1
The Supreme Court's recent opinion in Comcast, embracing the but-

for principle in the context of 42 U.S.C. § 1981, is especially suggestive
of the ways that the Court's statutory turn to "but for" may be useful to
1 20
arguing for a true disparate treatment doctrine in constitutional law.
Comcast addresses § 1981, which the Supreme Court has long suggested
has a close relationship to the Fourteenth Amendment by virtue of the
circumstances of its enactment. 12 1 Thus, as the Court has observed, the
Fourteenth Amendment was in many ways an "expression[] of the same
general congressional policy" as § 1981, and many members of Congress
"support[ed] the adoption of the Fourteenth Amendment ... to
incorporate the guaranties of the Civil Rights Act of 1866 [Ed note: of
which § 1981 was a part] in the organic law of the land." 22
Thus, under
the Court's existing precedents, § 1981 and the Fourteenth Amendment
are typically construed coextensively in the scope of their anti-
discrimination principles.'1 2 As such, there is a strong argument that
Comcast's endorsement of the but-for principle as the central defining
feature of § 1981 should be at least relevant-and potentially dispositive
124
of-the proper interpretation of the Equal Protection clause itself.
But Comcast is relevant to arguments for centering the but-for principle
in the constitutional context for a second reason as well. Comcast
embraces the idea that not only Congress-but the Court itself-has
meant to endorse the but-for principle where it has used language to the
effect that discrimination "on the basis of," "by reason of' or "because
of' race is proscribed.' 2 5 Thus, the Court observed that its prior decisions
describing § 1981 and § 1982 as prohibiting discrimination "on the basis
of race" and prohibiting actions taken "because of' race themselves'
signified an endorsement of the but-for principle.1 2 6 As such, the Court
assumed that where prior decisions of the Court use the language
120 Comcast Co. v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1016-17 (2020).
121 See, e.g., Gen. Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 383-91 (1982).
122 Id. at 384-85.
123 Id. at 389-90.
124 Of course, there is also a potential argument that the Court got it wrong in Comcast and
that motivating factor liability should have been found to be available since the Court had
already held that motivating factor liability is available in the Equal Protection context. See
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,265-70,270 n.21 (1977).
't Comcast, 140 S. Ct. at 1016-17.
126 Id.
"because of' or "on the basis" of race, they too endorse the but-for
principle as the relevant standard.' 27
While the assumptions on which this approach rests may be
questionable, taken at face value, it offers considerable opportunities to
argue that the but-for principle extends to the Equal Protection context.
Indeed, dozens of the Supreme Court's Equal Protection cases, ranging
from the immediate aftermath of the Fourteenth Amendment to today, use
precisely this type of language ("because of," "by reason of') to describe
the Equal Protection standard.1 28 Thus, for example, cases such as
Adarandv. Penarepeatedly state the principle that "government may treat
people differently because of their race only for the most compelling
reasons."1 29 So too, as the Supreme Court observed in Bolling v. Sharp,
"[a]s long ago as 1896, this Court declared the principle 'that the
Constitution of the United States ... forbids ... discrimination ...
against any citizen because of his race. ""30 Even decisions closely
associated with a strong requirement of intent or purpose, like Personnel
Administratorv. Feeney, ultimately state that such discriminatory purpose
exists where "the decisionmaker . .. selected or reaffirmed a particular
course of action at least in part 'because of,' not merely 'in spite of" its
effects on a particular group.'31
Finally, other well-established interpretive principles are likely to also
aid in making the argument that the but-for principle ought to reside at the
core of the constitutional anti-discrimination inquiry, not just the statutory
one. The Supreme Court has typically treated disparate treatment
discrimination in the constitutional and statutory contexts as following the
same principles, relying on cases from one context to inform the other.' 3 2
And there is nothing in the text of the Equal Protection clause itself that
would bar an interpretation that rested on a true disparate treatment
standard-indeed, arguably that is the most natural reading of the clause.
127 Id.
128 See, e.g., infra notes 129-31 and accompanying text.
129 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 235 (1995) (emphasis added).
30 Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (quoting Gibson v. Mississippi, 162
U.S.
565, 591 (1896)) (emphasis added).
131 Pers. Adm'r v. Feeney, 442 U.S. 256, 279 (1979); see also Selmi, supra note 60, at 291-
92 (interpreting Feeney as adopting what David Strauss has referred to as the "reversing the
groups" test, i.e., but-for causation).
132 See Primus, supra note 7, at 1354-55.
("No State shall .. . deny to any person within its jurisdiction the equal
protection of the laws.") 133
Thus, recent cases centering the but-for principle offer a unique

opening to resolve the theoretical crisis at the heart of anti-discrimination
law, in favor of a true disparate treatment standard. The following Part
turns to what a disparate treatment law centered on the but-for principle
might look like in practice and how such a turn could hold the potential
to address many of the existing pathologies in anti-discrimination law.
III. THE RADICAL POTENTIAL OF ASKING THE FACTUAL QUESTION OF

"BUT FOR"
What would a disparate treatment doctrine centered on the but-for
principle look like? This Part takes up the task of elaborating on that
vision. It begins with describing what centering the but-for principle
would entail in an individual case and then turns to how that simple
individualized paradigm could revolutionize the broader landscape of
disparate treatment law.' 34 As set out below, the but-for principle calls for
each anti-discrimination case to center on a simple factual inquiry: would
the outcome have been different "but for" the race, sex, or other protected
class status of those affected? But taken seriously, centering this simple
factual inquiry in each case would also demand that most of the legalistic
infrastructure of disparate treatment law be abandoned. Thus, the but-for
principle offers a simple and compelling paradigm for everything from
case-specific efforts to respond to summary judgment to systemic reform
advocacy.
A. The But-For Principlein the Individual Case

In the context of a specific case, the inquiry that the but-for principle
demands is straightforward: would the adverse outcome or policy have
been different "but for" the race, sex or other protected class status of
those affected?13 5 As the Supreme Court has observed, this inquiry is the
133 U.S. Const. amend. XIV, § 1.

134 I use "individual" here simply to connote a single case and not as a term of art
encompassing only so-called "individual disparate treatment" cases.
13 Cf. David Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Chi. L. Rev.
935, 956-58 (1989) (proposing a similar approach based on the Supreme Court's then-existing
case law, which he referred to as the "reversing the groups" test).
equivalent of the "simple" and "traditional" tort law inquiry into "cause
in fact." 136 Thus, just as in the tort law context, the question that the but-
for principle asks is a factual, not a legal, one: would the outcome have
been different "but for" protected class status? 137 Assessing that factual
question at the trial stage simply requires the fact fmder to consider all of
the evidence offered by the plaintiff and the defendant in order to assess
whether the fact finder is persuaded-by a preponderance of the
evidence-that the outcome would have been different "but for" the race,
sex or other protected class status of the plaintiff.
Because the vast majority of discrimination cases are civil cases, it is
important to note that metaphysical certainty is not required in order for
a plaintiff to prevail at trial in making this showing.' 38 Rather, the plaintiff
must only persuade the fact finder (typically a jury) that it is "more likely
than not" that the outcome would have been different "but for" the
protected class status of the plaintiff.139 Thus, while there may be
circumstances in which it would be difficult or impossible to prove with
absolute certainty that "but for" causation exists, those circumstances tend
to be of little practical significance in reality.'4 0 Because of the standards
136 See, e.g., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346-47 (2013); Bostock
v. Clayton Cnty., 140 S. Ct. 1731, 1747 (2020).
137 See, e.g., Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 26
(Am. L. Inst. 2010); see also U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S., 711,
715-17 (1983) (emphasizing that the fundamental question in a Title VII disparate treatment
case is a factual question); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 524 (1993)
(same).
138 For an overview of the criminal civil rights statutes that are subject to enforcement by
the Department of Justice, see, e.g., Alison M. Smith, Overview of Selected Federal Criminal
Civil Rights Statutes, Cong. Rsch. Serv. (Dec. 16, 2014),
https://sgp.fas.org/crs/misc/R43830.pdf [https://perma.cc/FB9F-L84G]. Criminal civil rights
enforcement may raise distinctive issues and is not the primary subject of this Article.
139 See, e.g., Ruth Maurice, Legal Standards of Proof, NOLO https://www.nolo.comlegal-
encyclopedia/legal-standards-proof.html [https://perma.cc/4KXJ-N5GR] (last visited Oct. 26,
2021) (describing the civil "preponderance of the evidence" standard of proof).
14 For this reason, I do not view Alexandra Lahav's theory of "chancy causation" to be
particularly relevant for the discrimination context. See Alexandra D. Lahav, Chancy
Causation in Tort, 14 J. Tort L. (forthcoming 2021) (manuscript at 2-3) (on file with author).
While there may not be epistemic certainty in applying the but-for principle given the
complications of fully reconstructing the counterfactual of a situation in which the plaintiff
was outside the protected class, there is no need for such a perfect certainty. Rather, the
plaintiff need only persuade the jury that it is "more likely than not" that the outcome would
have been different "but for" protected class status. Thus, while Lahav argues that the standard
of proof does not alleviate the problems of uncertain causation, id. at 10-11,1 disagree, at least
in those circumstances (such as discrimination) where causation is not exclusively proved via
probabilistic statistical studies.
of proof in a civil case, the plaintiff need not achieve absolute certainty
via their proof.141 Rather, the plaintiff need only persuade the fact finder
that it is more likely than not, i.e., slightly more probable than not, that
the outcome would have been different but-for their protected class
status.14 2 In answering that question in a discrimination case, fact fmders
can (and must) ultimately rely on their own judgment to decide whether
it is more likely than not that the outcome would have been different for
someone outside the protected class-regardless of whether epistemic
certainty is possible. 143
Moreover, this is the most demanding standard that plaintiffs should
face under a but-for approach at any stage of the litigation. As the
Supreme Court held in its Comcast v. National Association of African-
American Owned Media decision, "the essential elements of a claim
remain constant through the life of a lawsuit."1 44 Thus, "while the
materials the plaintiff can rely on to show causation may change as a
lawsuit progresses from filing to judgment, the burden itself remains.
constant." 14 5 As such, in the context of a "but for" case, the burden at all
procedural stages is to show, to the standard demanded by the particular
procedural stage, that the outcome would have been different "but for"
the protected class status of those affected. Thus, while courts have often
applied distinctive and more difficult substantive standards to summary
judgment or even to motions to dismiss in anti-discrimination cases, this
is erroneous. Rather, the only permissible judicial inquiry under Comcast
is whether the plaintiff has plausibly alleged that they were treated
differently "but for" their protected class status (at the motions to dismiss
phase), or that a reasonable jury could so conclude (at summary judgment
and JMOL).
141 Id. at 10.

143 Cf. Ethyl Corp. v. Env't Prot. Agency, 541 F.2d 1, 28 n.58 (D.C. Cir. 1976) ("Petitioners
demand sole reliance on scientific facts, on evidence thatreputable scientific techniques certify
as certain.... Such certainty has never characterized the judicial or the administrative process.
It may be that the 'beyond a reasonable doubt' standard of criminal law demands 95%
certainty.. . . But the standard of ordinary civil litigation, a preponderance of the evidence,
demands only 51% certainty. A jury may weigh conflicting evidence and certify as
adjudicative (although not scientific) fact that which it believes is more likely than
not. ... Inherently, such a standard is flexible; inherently, it allows the fact-finder to assess
risks, to measure probabilities, to make subjective judgments. Nonetheless, the ultimate
finding will be treated, at law, as fact .... ").
144 Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1014 (2020).
141 Id. at 1014-15.
Importantly, the Supreme Court has made clear that this but-for
showing does not require a plaintiff to demonstrate "sole" causation-or
to disprove that legitimate considerations may have played some role in
the defendant's decision. Rather, protected class status need only be the
"straw that broke the camel's back"-a factor that made a difference.1 46
Thus, if an African American employee was late to work five times-and
was terminated on that basis-but a white employee who was similarly
tardy would not have been, the but-for principle would be satisfied. 147 So,
too, if a government entity would not have enacted a policy "but for" the
race or sex of those affected (for example, if a Republican legislature
would not have enacted a voter ID law if it disproportionally impacted
whites), that would suffice, even if there was some legitimate basis for
the law. 148 As the Court observed in the Bostock decision in 2020, the but-
for principle is thus a "sweeping standard," which finds liability if
protected class status was "one but-for cause of [the] decision," even
where other legitimate considerations also played a role.1 49
It is easy to see the potential of this standard on an individualized basis.
Currently, most anti-discrimination claims are dismissed before trial,
typically applying myriad technical legal doctrines.' 5 0 But in many such
cases, a reasonable jury could conclude as a factual matter that the
adverse action or policy that the plaintiff complains of would not have
happened "but for" the protected class status of those affected."5 Indeed,
taking "the straw that broke the camel's back" approach seriously, there
14 Burrage v. United States, 571 U.S. 204,211(2014); see also Bostock, 140 S. Ct. at 1739-
40, 1744 (making clear that protected class status under the "but for" standard need not be the
sole, or even primary cause, so long as without it the defendant's action would not have
occurred).
141 See Bostock, 140 S. Ct. at 1739 (observing that an employer cannot avoid liability under
Title VII just by "citing some other factor that contributed to its challenged employment
decision" and that if protected class status was one "but for" cause, the employer has violated
the law).
141 Cf. Restatement (Third) of Torts: Liability for Physical & Emotional Harm, § 26 cmt. e.
(2010) (observing that the cause in fact inquiry demands a "counterfactual inquiry").
149 Bostock, 140 S. Ct. at 1739-40.
50 See Sperino & Thomas, supra note 3, at 151-55 (quoting Michael J. Zimmer, Slicing
&
Dicing of Individual Disparate Treatment Law, 61 La. L. Rev. 577, 591 (2001)); Berrey,
Nelson & Nielsen, supra note 25, at 63. There are also a substantial number of discrimination
claims that settle before trial (most commonly before summary judgment), but the amount of
those settlements tends to be very low. See Sperino & Thomas, supra note 3, at 16; Eyer, supra
note 9, at 1290-91.
151 For a few examples of cases where it seems highly likely that a reasonable jury could
have found for the plaintiffs as a factual matter, see Eyer, supra note 2, at 982-83.
may be relatively few discrimination cases in which we can confidently

say that no reasonable jury could find for the plaintiff. Thus, the but-for
principle counsels that-as some lower courts once suggested-summary
judgment should "seldom be used" in anti-discrimination cases." 2
Instead, such cases ought to be decided by the relevant fact-finder.
Nor does the but-for principle require especially complex or technical
rules of proof to be applied. Rather, focusing on the but-for principle as a
factual question makes clear that-just like any other factual inquiry-
the evidence that might be used to prove "but for" will be as varied as the
individual cases in which the question is asked. In any given case, a
plaintiff might introduce any of a variety of types of evidence, including
evidence that those outside of the protected class were treated more
favorably in similar circumstances, evidence of biased comments,
evidence regarding common social stereotypes, evidence that the
legitimate reasons the defendant has offered are false or weakly
supported, and so on.' 5 3 So too, a defendant, in arguing against "but for,"
might introduce myriad of different forms of proof, from seeking to
demonstrate that their reasons for acting were important and legitimate to
evidence that a particular decisionmaker seems unlikely to have acted in
a biased manner (for example, because he or she recently hired the
plaintiff)."'
Importantly, under a factual but-for approach, none of these particular
types of evidence would be required or dispositive. Rather, the ultimate
question would be whether-in view of all the facts and circumstances-
the fact-finder believed that the outcome would have been different "but
for" the protected class status of those affected. Or, at the summary
52 See, e.g., Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994), rev'd in part by
Torgerson v. Rochester, 643 F.3d 1031, 1060 (8th Cir. 2011).
"I Cf. Reeves v. Sanderson Plumbing, 530 U.S. 133, 147-49, 151-54 (2000) (making clear
that a variety of forms of evidence can be considered in determining the ultimate factual
question of discrimination, including evidence that the employer has offered a false reason for
their employment decision).
1 The lower courts have a dizzying array of technical rules that they have crafted out of
common factual situations that can arise in the context of discrimination law, such as, for
example, the so-called "same actor" inference (that we presume the same manager who hired
a minority worker will not turn around and fire them shortly thereafter on a discriminatory
basis). These technical doctrines-which seek to enforce as a matter of law what inferences
must be drawn from particular pieces of the factual record-are inconsistent with a true factual
inquiry, and would not be properly applied under a factual "but for" approach. See, e.g., Eyer,
supra note 2, at 1011 n.270 and accompanying text. However, that does not mean that the
types of situations these doctrines represent may not be useful evidence for an employer to try
to include in their arguments.
165 8 Virginia Law Review [Vol. 107:1621
judgment stage, whether a reasonable jury could so conclude, drawing all

inferences in favor of the non-movant, typically the plaintiff. Thus, unlike
the current legal regime, in which courts typically enforce rigid rules on
which evidence will be required or disregarded, and what the significance
of that evidence will be, in a but-for regime, the fact-finder would simply
be presented with all of the evidence, subject to the normal rules of
evidence, and asked to resolve the ultimate factual question."'
For an example of how this approach would differ from the courts'
current approach, consider the case of Wallace v. Methodist Hospital
System. 156 In Wallace, the plaintiff, a nurse, took maternity leaves two
times in close succession, and became pregnant with a planned leave
shortly thereafter.1 57 Her supervisor had expressed frustration with
Wallace's repeated pregnancies and leaves, telling Wallace, for example,
that she needed to "choose between nursing and family." 158 Wallace
committed a significant infraction shortly before her third scheduled
maternity leave by replacing a feeding tube without proper orders, and
falsely indicating in her notes it had been authorized by a doctor.15 ' She
was fired, and sued claiming pregnancy discrimination. 60 At trial, there
was evidence that some non-pregnant nurses had committed similar,
though not identical infractions, and were not fired.1 61 In addition, there
was testimony from a co-worker that, when asked about the reasons for
Wallace's termination, they had heard Wallace's immediate supervisor
respond, "[fJirst of all, she's been pregnant three times in the last three
years."1 6 2
Under a straightforward but-for approach, Wallace would be a clear
case for a jury. While epistemic certainty may be impossible in a case like
Wallace's, a reasonable jury certainly could conclude that it is "more
likely than not" that the outcome would have been different "but for" her
pregnancies.163 That is, a reasonable jury could conclude that Wallace
"I See, e.g., Sandra Sperino, Evidentiary Inequality, 101 B.U. L. Rev. (forthcoming Dec.
2021) (manuscript at 56-58, 66-67) (on file with author) (calling for the courts to apply the
normal rules of civil procedure and evidence in discrimination cases, instead of engrafting
specialized evidentiary rules onto discrimination cases).
156 Wallace v. Methodist Hosp. Sys., 271 F.3d 212 (5th Cir. 2001).
5 Id. at 215-16.
157
1Id. at 216.
1 Id. at 216-17.
160 Id. at 217-18.
161 Id. at 221.
162 Id. at 218.
163 See supra notes 138-43 and accompanying text.
would not have been fired for her (unquestionably significant) offense had
she not also been pregnant three times in the last three years. This and
many other cases will ultimately be a judgment call for the fact-finder,
based on all of the facts and circumstances it was presented with, coupled
with the perceived credibility of the witnesses.1 64
And indeed, a jury did conclude that Wallace was terminated because
of her pregnancies.1 65 Yet the U.S. Court of Appeals for the Fifth Circuit
affirmed a grant of judgment as a matter of law, applying a host of
technical doctrines to "slice and dice" Wallace's evidence.1 66 The Court
first opined that Wallace's non-pregnant comparators were not close
enough because they had committed infractions that were not identical to
Wallace's own. 167 It then dismissed Wallace's explicit evidence of
pregnancy discrimination (such as the remark that she was fired because
"she's been pregnant three times in the last three years") under the stray
remarks doctrine. 168 Ultimately, having dismantled the plaintiffs
evidence via these technical doctrines, the court concluded that the jury's
verdict could not stand. 169
The Fifth Circuit's approach should be clearly impermissible if the but-
for principle controls. 17 0 The technical doctrines applied by the Fifth
171
Circuit-such as rejecting comparators as insufficiently close and
ignoring damning testimony under the stray remarks doctrine-simply
have no place in a straightforward factual inquiry. Rather, the question
for the court is simply whether a reasonable jury could have concluded
17 2
that Wallace would not have been terminated "but for" her pregnancies.
164 Id.
165 Wallace, 271 F.3d at 218.
166 Id. at 220-26.
167 Id. at 221-22.
161 Id. at 222-23.
169 Id. at 224.
171 It is important to emphasize that a but-for approach would provide a basis for pushing
back on-and would not reify or exacerbate-the current tendency of the courts to demand
close comparators in disparate treatment cases. See generally Goldberg, supra note 67, passim
(extensively describing the problematic comparator requirements that the lower courts have
imposed in the discrimination context). As the Supreme Court has made clear, the but-for
inquiry is a hypothetical counterfactual one. See, e.g., Comcast v. Nat'l Ass'n of Afr. Am.-
Owned Media, 140 S. Ct. 1009, 1014-15 (2020). As Wallace illustrates, any evidence bearing
on that counterfactual inquiry should be relevant, including many types of evidence that are
not comparator evidence of any kind. Thus, while identifying a close comparator may certainly
be useful for proving but-for causation, it should not be necessary.
And shorn of the Court's technical justifications, it seems clear that the
answer to that question is "yes." 173 Wallace thus provides a clear example
of how the but for principle could transform the approach-and
outcome-in many contemporary anti-discrimination cases.
And, while it may be hard for some to imagine anti-discrimination law
without all of the technical twists and turns, especially at summary
judgment, where most cases are currently dismissed, as then-Judge
Gorsuch observed, a simple focus on the factual question of causation is
actually far easier to apply. 7 4 Under the current approach, parties in an
anti-discrimination case can produce dozens of pages of briefmg at
summary judgment, addressing myriad nuances of specific technical
doctrines, all of which the court must address in order to resolve the
motion.' 7 5 But under a simple but-for approach, a court must simply
consider all of the facts and evidence before it, taken as a whole in the
light most favorable to the non-movant, and determine whether a
reasonable jury could find that the outcome would have been different
"but for" race, sex, or other protected class status. No technical tests or
specialized elements are required to answer this common-sense question.
And while no doubt judicial biases against discrimination claims would
continue to play a role in some adjudications, overall, such a system
would be far more likely to produce fair outcomes, eliminating the maze
of technical requirements that anti-discrimination law currently entails.
B. Revolutionizing Anti-DiscriminationLaw Through "But For"

A disparate treatment doctrine focused on the but-for principle thus has
the potential to benefit individual litigants. But could it produce wider
change in anti-discrimination law? In a word, yes. Improbably, simply
insisting that the factual question of "disparate treatment" be dispositive
would be revolutionary in anti-discrimination doctrine. Currently, as
described above, anti-discrimination law is a highly rigid technical area
of the law, in which any of myriad technical doctrines can lead to
dismissal.1 76 Courts approach the question of discrimination as if it were
173 Indeed, the statements of Wallace's immediate supervisor alone-indicating that

Wallace was fired because "she's been pregnant three times in the last three years"-seem
likely to create a jury issue in this case. Wallace, 271 F.3d at 218.
174 Walton v. Powell, 821 F.3d 1204, 1212, 1214 (10th Cir. 2016).
175 See, e.g., Suja Thomas, Why Summary Judgment Is Unconstitutional, 93 Va. L. Rev.
139, 178 (2007).
a complex legal puzzle, in which any piece out of place must result in the
dismissal of the plaintiffs' claims. 177 Prior precedent is treated as legally
dispositive of the unique factual circumstances of this case-despite the
fact that no prior case has adjudicated a case with these exact facts and
circumstances. 7 8 Evidence is "sliced and diced" without ever asking the
factual question of whether disparate treatment took place. 179 Cases are
dismissed based on collateral doctrines that have no relationship to the
question of whether discrimination took place.18 0
All of this is arguably illegitimate if the but-for principle controls. The
complex technical doctrines that the courts have engrafted onto the
disparate treatment inquiry-such as rigid comparator requirements, the
"same-actor" inference, the "stray remarks doctrine," and, indeed, the
McDonnell Douglas paradigm itself-all are impermissible distractions
from the factual question of discrimination if the but-for principle
controls.'81 Demands that the plaintiff shoehorn her proof into particular
categories-and the courts' propensity to address each of those categories
as if they were separate elements, rather than a unified whole-is also
inconsistent with a factual but-for approach.' 8 2 Searches for the particular
role of specific actors in producing disparate treatment-or for concrete
evidence of self-aware intent-provide no justification for dismissing
claims.' 83 Even the operation of independent doctrines-like standing or
the immunity of government officials-to bar discrimination claims can
at least be challenged more effectively when set against a backdrop of the
84
presumption that all "but for" discrimination ought to be proscribed.1
177 Id.
178 See Eyer, supra note 2, at 980-81, 1011 n. 270.
179 See generally Sperino & Thomas, supra note 3, at 152 (describing this phenomenon
extensively and using the phrase "sliced and diced").
181 See, e.g., Eyer, supra note 2, at 978-84; see also Widiss, supra note 68, at 29-34
(describing the ways that the McDonnellDouglas paradigm is often applied in conflict with
the principles behind but-for causation).
183 See generally McCleskey v. Kemp, 481 U.S. 279, 293-99 (1987) (rejecting Equal
Protection claim based on a statistical showing that Black defendants were more likely to
receive the death penalty when they killed white victims, based in part on the difficulties of
identifying individual discriminatory actors, and a lack of specific evidence of discriminatory
intent).
184 See generally City of Los Angeles v. Lyons, 461 U.S. 95, 105-10 (1983) (holding that
plaintiff lacked standing to seek injunctive relief from illegal police chokehold); Imbler v.
Pachtman, 424 U.S. 409,427-28 (1976) (holding that prosecutors are absolutely immune from
civil liability under § 1983 in the conduct of their duties).
Thus, although the but-for principle (and its associated mandate to

focus on the factual question of discrimination) is simple, it has broad
potential impact. Indeed, it is arguably the very simplicity and
adaptability of the but-for principle that affords it such significant
potential as a tool of reform. It can be raised by an individual litigant in a
brief opposing summary judgment or by an advocacy organization
arguing to overturn a major doctrine before the Supreme Court. It can be
used to frame discussions of legislative amendments in Congress and to
produce scholarship critiquing many of the most devastating doctrines
that currently are attached to anti-discrimination law. Its very simplicity
of messaging-that the core guarantee of anti-discrimination is and must
be the promise that no individual or group can be treated differently
because of their race, sex, or other protected class status-is precisely
what makes it versatile, intuitive, and potentially powerful across a
variety of contexts.
Such an approach to reforming anti-discrimination law is, of course,
not guaranteed to succeed. But there are numerous reasons for thinking
that it could, especially if widely adopted by anti-discrimination law
advocates and scholars. As described in Part II, supra, recent cases of the
Supreme Court offer a strong basis for arguing that the but-for principle
is textually compelled and that it is anti-discrimination law's central
defining principle.' 85 Moreover, some circuits have already adopted
approaches to anti-discrimination claims that are wholly consistent with
the but-for approach.' 86 And, there are even reasons to believe that-
when cases raising but-for-based challenges ultimately reach the Supreme
Court-a majority of the current Justices may be receptive.
Most notably, Justice Gorsuch, though often thought of as aligned with
the "conservative" wing of the Court, has repeatedly signaled his
receptiveness, and indeed endorsement of the but-for approach to anti-
discrimination law. During the 2019 Term, Justice Gorsuch authored two
85 See supra Part II.

186 For example, some circuits have rejected technical approaches to discrimination claims
and instructed courts in their circuit to ask the simple question of "[w]hether a reasonable juror
could conclude that [the plaintiff] would have [experienced a better outcome] if he had a
different [protected class status] and everything else had remained the same." Ortiz v. Werner
Enters., 834 F.3d 760, 763-65 (7th Cir. 2016); see also Smith v. Lockheed-Martin Corp., 644
F.3d 1321, 1328 (11th Cir. 2011) (explaining that a plaintiff in an employment discrimination
case need not satisfy the elements of McDonnell Douglas to survive summary judgment,
because all that is required is a showing from which the jury could find that the plaintiff was
fired because of his protected class status).
opinions-Comcast and Bostock-that wholeheartedly endorsed the but-

for principle, characterizing it as the "simple," "traditional," and textually
mandated test at the core of anti-discrimination law.1 87 Moreover, these
views are not new. As a judge on the U.S. Court of Appeals for the Tenth
Circuit, then-Judge Gorsuch repeatedly articulated the view that the
technical overlay of anti-discrimination law is burdensome and
unnecessary, and that the courts should instead focus on the simple factual
question of causation.' 88 Finally, in opinions both as a Supreme Court
Justice and as an appellate judge, Justice Gorsuch has articulated the view
that the inquiry ought to be the same at all stages of a discrimination
case-and that the courts should not adopt complex tests in order to
justify summary judgment, the stage at which most discrimination cases
are dismissed. 189
And while the possible fifth vote on the Supreme Court for but-for-
centered anti-discrimination law reform is less certain, there are reasons
to believe that both Justice Kavanaugh and Chief Justice Roberts could
be plausible candidates. Chief Justice Roberts has, of course, until
recently been thought of as the "swing" vote on the Court, and joined
Justice Gorsuch's opinions in both Comcast and Bostock.1 90 And Justice
91
Kavanaugh-though he dissented in Bostock' -joined Justice
Gorsuch's opinion in Comcast.192 As importantly, Justice Kavanaugh also
wrote a significant opinion while on the Court of Appeals simplifying the
anti-discrimination law inquiry-and has characterized such
93
simplification generally as beneficial to "courts and litigants alike."'
Thus, while neither Justice Roberts nor Justice Kavanaugh is clearly
aligned with a project of but-for-focused anti-discrimination law reform,
187 Comcast v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1014, 1018 (2020);
Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739-40 (2020).

188 See, e.g., Walton v. Powell, 821 F.3d 1204, 1211-12 (10th Cir. 2016); Barrett v. Salt
Lake Cnty., 754 F.3d 864, 867-68 (10th Cir. 2014).
'89 See Comcast, 140 S. Ct. at 1014-15; Walton, 821 F.3d at 1212.
190 See Comcast, 140 S. Ct. at 1012; Bostock, 140 S. Ct. at 1736; see also Adam Liptak, A
Supreme Court Term Marked by a Conservative Majority in Flux, N.Y. Times (July 2, 2021),
https://www.nytimes.com/2021/07/02/us/supreme-court-conservative-voting-rights.html
[https://perma.cc/JKR4-9F97] (noting that Justice Roberts has traditionally been the "swing"
Justice on the Court, but that impact was no longer so apparent during the 2020 Term).
191 Bostock, 140 S. Ct. at 1822 (Kavanaugh, J., dissenting).
192 See Comcast, 140 S. Ct. at 1012.
193 Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008); see also Brady
v. Off. of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (critiquing the prima facie
case factors of McDonnell Douglas for creating "enormous confusion" and wasting judicial
resources).
there are reasons to believe that each of them might be receptive to cases
raising such arguments.
There are thus reasons to believe that but-for-centered arguments for
the reform of anti-discrimination law could succeed in future cases at the
Supreme Court, just as they did in Bostock. But it is important to note that
innumerable opportunities exist to center the but-for principle right now
in the lower courts, regardless of its further endorsement by the Supreme
Court. As described in Part II, supra, the Court has already endorsed the
but-for principle as the central textual mandate of anti-discrimination
law.1 94 And some circuits too have already independently adopted an
approach to anti-discrimination law that follows an analogous
approach. 195 Thus, advocacy within the lower courts-where the lion's
share of discrimination cases will be resolved-is both possible and
important. Indeed, pushing for the broad embrace of the but-for principle
in the lower courts-and its simple, factually focused inquiry-is an
important part of laying the groundwork for more substantial challenges,
at whatever level those challenges might occur.
In sum, a but-for approach-centering the simple factual question of

whether the outcome would have been different "but for" the protected
class status of those affected-is radical in its simplicity. Focusing on this
simple argument-that we ought always to be asking the factual question
of whether disparate treatment took place-could offer the opportunity to
meaningfully overhaul anti-discrimination law, and to ultimately rid it of
many of its most devastatingly anti-plaintiff doctrines. The following Part
turns to a discussion of other equality-promoting doctrines that anti-
discrimination scholars and advocates have argued for and shows that
many of them are wholly or partially encompassed within the but-for
principle.
IV. THE BUT-FOR PRINCIPLE AS A HOME FOR OTHER EQUALITY-

PROMOTING DOCTRINES AND PRINCIPLES
Perhaps because of the conceptual crisis in disparate treatment law,

alternatives to disparate treatment doctrine, such as stereotyping doctrine,
negligent discrimination, motivating factor, and disparate impact, have

traditionally attracted considerable attention from anti-discrimination

scholars and advocates. But as this Part demonstrates, many of these
alternatives are wholly or partially encompassed within a true disparate
treatment standard. Thus, embrace of the but-for principle does not, in
most instances, conflict with such alternatives. Indeed, to the contrary, it
affords an opportunity to strengthen their foundations, by situating them
as textually mandated.
A. Stereotyping Jurisprudence
As anti-discrimination scholars and advocates have long recognized,
1 96
stereotypes lie at the heart of many, if not most, discriminatory acts. As
such, scholars and advocates have long contended that anti-stereotyping
principles ought to play a central role in anti-discrimination law.1 97 And
in a seemingly substantial victory, a majority of the Justices in 1989
endorsed the perspective that gender stereotyping is impermissible under
Title VII in the case of Price Waterhouse v. Hopkins, albeit in a splintered
set of opinions.1 98
But while Price Waterhouse led to certain significant successes for
plaintiffs (including most notably, a wave of lower court cases
recognizing anti-transgender discrimination as sex discrimination),
stereotyping doctrine in general has not been as effective as advocates had
hoped.1 99 Cases addressing racial stereotyping, or other forms of non-sex-
200
based stereotyping have continued to see little success. And even
gender stereotyping has long been dogged by critiques that it lacks any
196 See, e.g., Lawrence, supra note 32, at 332-44.

197 See, e.g., Stephanie Bornstein, Unifying Antidiscrimination Law Through Stereotype
Theory, 20 Lewis & Clark L. Rev. 919, 925 (2016); Lawrence, supra note 32, at 355-78; Kyle
C. Velte, Toward a Touchstone Theory of Anti-Racism: Sex Discrimination Law Meets
#LivingWhileBlack, 33 Yale J.L. & Feminism (forthcoming 2021) (manuscript at 3) (on file
with author).
198 See Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989) (plurality opinion); Id.
at 272 (O'Connor, J., concurring).
199 See infra notes 200-79 and accompanying text. For the success of transgender litigants
under gender stereotyping theory, see, e.g., Glenn v. Brumby, 663 F.3d 1312, 1316-18 (11th
Cir. 2011); Whitaker v. Kenosha Unified Sch. Dist., 858 F.3d 1034, 1047-54 (7th Cir. 2017).
200 See, e.g., EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1024, 1035 (11th Cir. 2016).
But cf. Harden v. Hillman, 993 F.3d 465, 482-85 (6th Cir. 2021) (quoting Pena-Rodriguez v.
Colorado, 137 S. Ct. 855, 869 (2017)) (recognizing that unsubstantiated assumptions that a
Black excessive force plaintiff was a "crack head" likely arose from racial stereotypes and
were indicative of "overt racial bias" on the part of the jury).
clear textual foundation in anti-discrimination law. 201' As such, in Bostock

and its companion cases, many of the employers and their amici critiqued
the application of gender stereotyping doctrine in the lower courts as
jurisprudentially ungrounded, and called on the Court to narrowly cabin
its application. 202
But in Bostock, the Court resoundingly rejected this argument,
recognizing that prohibitions on stereotyping are directly linked to the
but-for principle, and thus to the text of Title VII itself. As the Court
observed in Bostock, it should be a "simple test" under the but-for
principle to find that an "[e]mployer [who] hires based on sexual
stereotypes" has violated Title VII.2 03 One need only ask the question
would the employer have objected to this contra-stereotypical
characteristic "but for" the plaintiffs' sex? 204 Or, as elaborated below,
would the defendant have adopted this stereotype-based policy "but for"
the protected class it benefits or harms? 205 Often, that question will easily
yield the answer "no," making clear that the but-for principle has been
violated. 206 As such, the Court in Bostock recognized that a defendant who
acts based on gender stereotypes has violated Title VII, pursuant to the
but-for principle. 207
While Bostock specifically addressed gender stereotypes, importantly,
its reasoning linking stereotyping to the but-for principle plainly extends
to other protected groups as well. The but-for principle textually applies
to all protected groups. And, in most instances when individuals or groups
are subjected to adverse stereotype-based actions, those stereotypes
20! See, e.g., Hamm v. Weyauwega Milk Prods., 332 F.3d 1058, 1066-67 (7th Cir. 2003)
(Posner, J., concurring).
202 See, e.g., Brief for Petitioner Altitude Express at 40-43, Bostock v. Clayton Cnty., 140
S. Ct. 1731 (2020) (No. 17-1623); Brief of Institute for Faith & Family and Christian Family
Coalition as Amici Curiae at 11-14, Bostock, 140 S. Ct. 1731 (No. 17-1623) (criticizing lower
courts that "have morphed stereotyping into a separate species of sex discrimination and a
rationale for judicially amending Title VII.").
203 Bostock, 140 S. Ct. at 1748-49.
204 Id. Importantly, as Suzanne Goldberg has observed, courts do not require comparators
for this inquiry in the stereotyping context. See Goldberg, supra note 67, at 784; see also
Bostock, 140 S. Ct. at 1741-43, 1748-49 (recognizing that the but-for principle can apply
based on background knowledge of the differential stereotypes applied to men and women,
without requiring real-world comparators).
207 See Bostock, 140 S. Ct. at 1741-43, 1748.
would not have been applied, "but for" protected class status. 208 This is
true both of adverse actions resulting from prescriptive stereotypes
(stereotypes about how a particular group should act or be), and
descriptive stereotypes (stereotypes about how a particular group does act
or is). 209 Thus, the operation of racial, religious, national origin, disability,
age, sex, and other stereotypes to effectuate disparate treatment against
individuals will, as a matter of course, violate the but-for principle. 2 10
While this does not mean that the mere existence of stereotyping
evidence is sufficient to show but-for discrimination in all instances, in
many circumstances, the existence of stereotype-based disparate
treatment may be easy to infer. For example, in cases involving family
responsibilities discrimination against women or men, it is often easy to
identify the ways that gender-specific stereotypes lead to "but for"
discrimination. 2 11 In the case of a woman who is denied a promotion
because she is a parent of small children, and thus stereotyped as being
uncommitted to the job, it takes no special evidence or expertise to
recognize that the same stereotype would not have been applied to a man
(indeed, a man might be assumed to need the extra income for his growing
family). 21 2 Conversely, in the context of a man who is penalized
especially harshly at work for taking time off to care for a newborn
(because of the stereotype that men are not supposed to engage in
caregiving), a simple "but for" analysis will also often lead to the
208 See infra note 210; see also Bornstein, supra note 197, at 962-74 (describing the ways
that stereotyping theory can be used to craft disparate treatment claims across the protected
classes).
209 See Bornstein, supra note 197, at 962-63 (describing the distinction between prescriptive
and descriptive stereotypes).
210 See, e.g., Bostock, 140 S. Ct. at 1741-43, 1748-49 (characterizing stereotyping as an
application of the "but for" principle, and linking the "but for" principle to Title VII's "because
of' language). As the courts have recognized, the but-for principle also applies to most other
major federal anti-discrimination laws, since they tend to have identical or cognate language
as a part of their core proscriptions. See, e.g., Gross v. FBL Fin. Servs., 557 U.S. 167, 175-78
(2009) (private sector age claims); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352
(2013) (Title VII retaliation provisions); Serwatka v. Rockwell Automation, Inc., 591 F.3d
957, 962 (7th Cir. 2010) (ADA).
211 See, e.g., Joan C. Williams & Stephanie Bornstein, Caregivers in the Courtroom: The
Growing Trend of Family Responsibilities Discrimination, 41 Univ. S.F. L. Rev. 171, 174-81
(2006).
212 See, e.g., Chadwick v. Wellpoint, 561 F.3d 38, 46-47, 48 n.12 (1st Cir. 2009).
conclusion that a different stereotype-and thus a different outcome-

would have resulted, "but for" his sex. 213
In other contexts, the presence of a stereotype-consistent explanation-
or other evidence of stereotyping-may not lead as inexorably to a finding
of disparate treatment, but would still be an important indication that
disparate treatment may have occurred. For example, as the U.S. Court of
Appeals for the Sixth Circuit recently recognized, ungrounded
assumptions that African Americans are drug users can be substantial
evidence of disparate treatment, given the long existence of pernicious
racial stereotypes associating drug use (and specifically crack-cocaine
usage) with African Americans. 2 14 Or in the case of a Mexican-American
employee who was fired because he was "lazy"-but appears to have
been as productive as other employees-national origin-based
stereotypes may be the most obvious explanation-stereotypes that would
not have been applied "but for" his national origin.2 1 ' So too, where a
school suspends a Black girl because she was "belligerent," it is important
to question whether that perception arose from race and gender-based
stereotypes-stereotypes which would not have been applied to, for
example, an outspoken white boy. 216
But what about circumstances where stereotypes appear to be at play,
but where an employer or government actor ostensibly treats all groups
similarly? Although not addressed by the Bostock court, here too, the but-
for principle can often comfortably accommodate stereotype-based
challenges.2 1 7 Disparate treatment law prohibits not only the differential
213 See, e.g., Catherine Albiston & Lindsey Trimble O'Connor, Just Leave, 39 Harv. J.L.
&
Gender 1, 40-44 (2016).

214 See Harden v. Hillman, 993 F.3d 465, 482-85 (6th Cir. 2021).
215 See, e.g., Pierre Tristam, Stereotype This: "Lazy Mexicans" and Other Insolvent Myths
of American Superiority, (Apr. 15, 2011), https://flaglerlive.com/20876/pt-us-superiority-
laziness/ [https://perma.cc/82CA-2BPT].
2 See, e.g., Jamilia J. Blake & Rebecca Epstein, Listening to Black Women & Girls: Lived
Experiences of Adultification Bias 1, 4-5 (2020).
217 See infra notes 218-23 and accompanying text. For this reason, I disagree with the
perspective of those such as Robin Dembroff, Issa Kohler-Hausmann, and Elise Sugarman
who believe that the but-for principle cannot accommodate an analysis of social meanings at
the group level. See generally Robin Dembroff, Issa Kohler-Hausmann & Elise Sugarman,
What Taylor Swift and Beyonce Teach Us About Sex and Causes, 169 U. Pa. L. Rev. Online
1, 3-4, 8-9 (2020) (arguing that the "but for" test obfuscates, rather than focuses on the real
question in anti-discrimination law cases, which should be an analysis of social meanings at
the group level). Rather, it is exactly the social meanings of particular actions that help inform
why stereotypes are relevant under the but-for principle and can form the basis for a
treatment of individuals qua individuals, but also group-based disparate

treatment. 2 18 Thus, where a policy or practice would not have been
adopted "but for" the group adversely affected (or the group advantaged),
the but-for principle is violated. 2 19 But, this is ordinarily precisely the
circumstance at issue in the context where a defendant has adopted a
stereotype-based policy which it subsequently applies across the board.
Consider, for example, the enactment of the federal crack/cocaine
sentencing disparity, the backdrop of which was a highly stereotype-
based image of Black criminality.22 0 Even on the hypothesis that the
resulting crack sentencing provisions were applied equally to Black and
white defendants alike (something that there is considerable reason to
doubt), there are still reasons to believe that the original policy would not
have been adopted "but for" the racial stereotypes that permeated its
enactment. 22 1 Or, consider the adoption or application of a "no
dreadlocks" policy, as in the U.S. Court of the Appeals for the Eleventh
22 2
Circuit case of EEOC v. Catastrophe Management. It seems
exceedingly unlikely that the employer would have adopted such a
policy-barring most traditionally African American hairstyles-"but
for" the racial stereotype that predominantly Black hairstyles are
223 Put otherwise, would the employer have adopted the
"unprofessional."
policy "but for" the race of those affected? Again, it takes no special
evidence or expertise to recognize that it is hard-indeed, virtually
impossible-to imagine a comparable policy requiring white employees
to adopt traditionally African American hairstyles.
Thus, the anti-stereotyping principles that advocates and scholars have
long argued for within anti-discrimination law can be comfortably
determination that a facially neutral policy would not have been adopted "but for" the
protected class status of those affected.
218 See, e.g., Ricci v. DeStefano, 557 U.S. 557, 579-80 (2009) (holding that it was disparate
treatment for City to refuse to certify test results because of how the test would affect minority
candidates as a group).
219 Id.
220 See, e.g., United States v. Clary, 846 F. Supp. 768, 783-87 (E.D. Mo. 1994), rev'd 34
F.3d 709 (8th Cir. 1994).
221 Id. See also Dvorak, supra note 10 (making the point that we have treated addiction crises
affecting the Black and white communities very differently); Harden v. Hillman, 993 F.3d
465, 482-85 (6th Cir. 2021) (describing the pernicious racial stereotypes that have long
surrounded cocaine use, and specifically crack-cocaine).
222 EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1021-22 (11th Cir. 2016) (employer
policy requiring "professional" hairstyles, interpreted by the employer as prohibiting
dreadlocks).
223 Id.
situated within the but-for principle. This is important, since the most
stubborn obstacles that stereotyping jurisprudence has faced-the
unwillingness to extend it to other groups (beyond sex), and critiques of
its lack of textual grounding-are evidently erroneous when viewed
through the lens of "but for." With only minor exceptions, the but-for
principle extends to all major protected groups under federal anti-
discrimination law.224 Thus, to the extent that stereotyping jurisprudence
is founded in the but-for principle, it must extend to all such groups as
well. And because the but-for principle arises from anti-discrimination
law's central text, it upends traditional critiques of stereotyping
jurisprudence as textually ungrounded and instead suggests that anti-
stereotyping principles arise from the core of anti-discrimination law's
statutory text. 2 5
B. Negligent Discrimination
So-called "negligent discrimination" has also been a long-standing
project of anti-discrimination law scholars. Building on the insights of
Charles Lawrence III, Professor David Oppenheimer in 1993 developed
for the first time a theory of "negligent discrimination." 2 2 6 As Professor
Oppenheimer noted, much discrimination does not in fact take place as a
result of conscious intent to discriminate. 22 7 Assuming that the Court's
disparate treatment opinions generally required such self-aware intent, he
further argued that the Court ought to recognize so-called "negligent
discrimination"-discrimination where the "employer fails to take all
reasonable steps to prevent discrimination that it knows or should know
is occurring, or that it expects or should expect to occur." 22 8 Over the last
three decades, scholars have continued to build on Professor
Oppenheimer's work in calling for anti-discrimination law to recognize a
variety of forms of "negligent" or "reckless" discrimination. 229
As Professor Oppenheimer and those who have built on his work have
properly recognized, "intentional discrimination" and "disparate
224 See supra Part I.

226 See Oppenheimer, supra note 60, at 900-17.
227 Id.
228Id. at 900, 922-25, 967-72.
229See, e.g., Stephanie Bornstein, Reckless Discrimination, 105 Calif. L. Rev. 1055, 1059-
60 (2017).
treatment" are not co-extensive. 230 History, experience, and the social
sciences all tell us that people can and do engage in "disparate treatment"
(in the sense that their actions would have been different "but for" the
race, sex or other protected class status of those affected), without a self-
aware intent to treat others differently based on protected class status.23 1
Indeed, as described in Part I, supra, it is precisely the conflation of these
two non-commensurate concepts-"intentional discrimination" and
"disparate treatment"-that has led to the conceptual crisis in anti-
discrimination law. 232 Professor Oppenheimer (and those who have built
on his work) were no doubt correct that excluding all cases in which the
actor does not possess a self-aware intent to discriminate would lead to
much disparate treatment going unremedied, and would be a crisis for
anti-discrimination law.
But as should be evident from the discussion in Parts I-III, supra,
"negligent discrimination" is in many ways a pale substitute for the but-
for principle. It simply is not necessary as a theory of disparate treatment
if the but-for principle controls. 233 Under the but-for principle, an entity
will be liable wherever the harm would not have occurred "but for" the
protected class status of the individual harmed. 234 One need not layer on
a complicated inquiry into whether the entity "knew or should have
known" that such discrimination would occur-and indeed doing so
arguably engrafts additional contra-textual obstacles to plaintiffs'
230 See, e.g., Oppenheimer, supra note 60, at 900-04; Bornstein, supra note 229, at 1059-
60.
232 Id.
233 It is important to note that there may still be more narrow instances in which negligence
or recklessness principles are important in anti-discrimination law, especially in the context
of employer responses to harassment, and employer liability for certain types of damages. But
the but-for principle makes clear that the heartland of what many scholars have sought to
address with negligent discrimination arguments-instances of disparate treatment that may
be effectuated without conscious intent-does not require a negligence paradigm, and that
indeed such a paradigm is likely to impose additional unnecessary burdens on plaintiffs as
compared to a "but for" approach.
234 See supra Part II; see also 42 U.S.C. § 2000e(b) (defining "employer" to include agents).
Note that the constitutional law context is different insofar as there are circumstances in which
sovereign immunity or § 1983 doctrines bar holding the entity itself liable. See, e.g., Will v.
Mich. Dep't of State Police, 491 U.S. 58, 80-81 (1989) (discussing the holding in United
States v. Fox, 94 U.S. 315, 318 (1877) that neither the state nor state officials acting in their
official capacity are "person[s]" within the meaning of § 1983). However, those restrictions
exist regardless of what the underlying standard is for assessing discrimination in the first
instance, the subject of negligent discrimination and the but-for principle.
relief.235 Thus, the very set of cases that Oppenheimer and other scholars
have meant to target-cases where disparate treatment has occurred, but
where the defendant did not act with self-aware discriminatory intent-
fall squarely within the but-for principle without any additional inquiry. 2 36
The but-for principle is thus not only an adequate but a superior theory to
"negligent discrimination" for instituting a true disparate treatment
standard. It provides a much simpler and more straightforward means to
the same end.
But what about cases like Bostock, which continue to suggest that a
showing of some form of intent is still required in anti-discrimination
law? As an initial matter, while cases like Bostock, Gross, and Nassar
situate the but-for principle as arising from the "ordinary meaning" of
anti-discrimination law's core language, they have not so characterized
intent.237 Thus, textualist principles arguably lean in favor of an
exclusively but-for focused standard. And while many contemporary anti-
discrimination cases do situate intent or purpose as a requirement, it is
clear that such cases have simply conflated disparate treatment and
"intent," rather than affirmatively selecting one or the other standard. 238
Therefore, one ultimate goal of a but-for-centered project can and should
be to challenge existing language in Supreme Court case law situating
intent as a necessary, distinct requirement.
But even assuming that in the near-term some nominal intent
requirement may be attached to the but-for principle, cases like Bostock
make clear that that requirement does not entail a showing of self-aware
conscious discriminatory intent. 2 39 Indeed, as described in Part II, supra,
Bostock makes clear that all that is required is an intention to take
differential adverse action against an individual or group (discrimination
in the literal sense)-actions that would, in turn, not have been taken "but
for" the protected class status of the individual or groups affected. 24 As
235 Cf. Oppenheimer, supra note 60, at 900 (employers would be liable for negligent
discrimination when they "fail[] to take all reasonable steps to prevent discrimination that
[they] know[] or should know is occurring, or that [they] expect[] or should expect to occur").
236 See supra Parts I-1I.
237 See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739-40 (2020) (emphasis added)
(describing the but-for principle as being mandated by Title VII's text, but as to intent stating
only that "[i]n so-called 'disparate treatment' cases . . . this Court has also held that the
difference in treatment . . . must be intentional.").
239 See Bostock, 140 S. Ct. at 1741-43, 1745-46.
240 Id.
2021 ] The But-For Theory of Anti-Discrimination Law 1673
described, supra, this formulation of intent simply serves to establish a

boundary between those cases in which there is internal group
membership causation (the plaintiff's membership was a cause of the
defendant's actions) as compared to external membership causation (the
plaintiff's group membership was a cause, but for reasons external to the
defendant). 241 As such, even if a nominal intent requirement remains in
the near term, Bostock makes clear that such a requirement addresses only
intent to take differential adverse action against an individual or a group
(discrimination in the literal sense)-not a self-aware intent of the role
that protected class status is playing in the outcome.
Thus, there is simply no need to engraft a theory of "negligent
discrimination" on disparate treatment doctrine if the but-for principle
controls.2 42 Any time a defendant targeted an individual or group for
adverse treatment-and would not have done so "but for" their race, sex,
religion or other protected class status-the but-for principle is violated.
No additional proof of employer negligence or recklessness is required.
Thus, under a but-for regime, a negligent discrimination framework
becomes not only unnecessary but a potential additional obstacle to
plaintiffs' success.
C. DisparateImpact
Since the 1970s, the disparate impact paradigm-which asks whether
a neutral policy or practice has a disparate impact on a protected group-
has captured the imagination of many anti-discrimination law scholars
and advocates. 24 3 Situating the paradigm as a preferred alternative to
disparate treatment law, such scholars and advocates have contended that
a disparate impact approach best effectuates anti-subordination
objectives-objectives which ought to be at the core of our anti-
discrimination inquiry. 244 Thus, they have argued that a disparate impact

242 As observed in supranote 233, there are other places in anti-discrimination law, such as
harassment, where a theory of negligence or recklessness may be important to establishing
liability. But this is not true of straightforward disparate treatment claims in which vicarious
liability exists.
243 See, e.g., Selmi, supra note 74 at 734-53 (observing and critiquing the extensive
scholarly focus on disparate impact).
244 See, e.g., Reva Siegel, Why Equal Protection No Longer Protects, 49 Stan. L. Rev. 1111,
1144-45 (1997) (arguing this in the constitutional law context); Mark Kende & Dahlia
Lithwick, The Supreme Court Still Refuses to Acknowledge Systemic Racism, Slate (July 2,
2020), https://slate.com/news-and-politics/2020/07/washington-v-davis-supreme-court-
standard ought to be available as a matter of constitutional law (where the

Supreme Court has rejected the availability of the paradigm)-and also
ought to play a central role in statutory anti-discrimination law. 245
But as Michael Selmi has shown, despite the emphasis placed on
disparate impact by scholars and advocacy groups, disparate impact law
has failed to produce the revolutionary outcomes that its outsized
prominence suggests. 24 6 Even in those domains-like Title VII-where
disparate impact has long been allowed, it has generated relatively few
cases and resulted in few systematic reforms. 247 And despite long
campaigns in the scholarly literature, the Supreme Court has shown no
signs of moving to permit a disparate impact paradigm in the Equal
Protection context-indeed, even the Court's progressives have
248
traditionally opposed such a move. Thus, today, disparate impact
doctrine plays only a limited role in anti-discrimination law, comprising
a tiny fraction of the cases brought challenging discrimination and failing
to revolutionize our workplaces, our housing, or the other contexts to
which it applies. 24 9
But while the near-term outlook for disparate impact doctrine itself
may not be bright, the but-for principle-by centering a true disparate
treatment principle-offers considerable opportunities to address
systemic anti-subordination goals. While, as elaborated in Part I, supra,
there remain genuine distinctions between a true "disparate treatment"
standard (the but-for principle) and a true "disparate impact" standard (in
which but-for differentiation does not exist), in many cases this difference
is likely to be immaterial. Precisely because of the overarching nature of
systems of racial, gender, disability, and other forms of oppression, it is
very often the case that policies or practices that have a disparate impact
on minority protected classes would not have been adopted "butfor" the
protected class status of those affected.2 10 That is, we can say in many
systemic-racism.html [https://perma.cc/ZT4W-BHAE] (arguing for overruling Washington v.

Davis).
246 See Selmi, supra note 74, at 734-53; see also Berrey, Nelson, &
Nielsen, supra note 25,
at 57 (observing that "[o]nly 4% of [discrimination] cases brought a disparate impact cause of
action" during the time frame studied).
248 See, e.g., Eyer, supra note 23, at 48-54 (describing the lack of objection by the Court's
race-liberals to the rejection of a constitutional disparate impact standard in Davis).
2021 ] The But-For Theory of Anti-DiscriminationLaw 167 5
instances with confidence that a policy or practice with comparable

impacts on the majority would not have been adopted.
There are many instances in which we can see this reality reflected in
major policy decisions that have had devastating impacts for communities
of color. For example, one need look no further than the dramatically
divergent approaches to the crack and opioid epidemics to see that even
genuine real-world problems generate dramatically different responses
(punitive as opposed to remedial) when the primary communities affected
are Black or white.2" So too, there are good reasons to believe that the
harsh policing practices implemented in predominantly minority
25 2
neighborhoods would not be tolerated in white suburban communities.
Other minority-disadvantaging policies, such as restrictive voter ID laws,
also seem highly unlikely to be tolerated if their impacts rested primarily
on minorities instead on the white majority. 25 3 Thus, in each of these
instances it should be possible for a reasonable fact-finder to conclude
that the policy would not have been adopted if it had comparable impacts
on non-minority groups.
Moreover, the potential of the but-for principle to effectuate disparate
impact anti-subordination goals is not limited to the race context (though
it is perhaps most self-evident there). For example, many of the policies
and practices that disproportionally burden women are also policies that
seem exceedingly unlikely to have been adopted if the burdened group
were men.254 Indeed, under the but-for principle, classic constitutional
cases like Feeney v. Personnel Administrator should turn out
differently-even in the absence of a disparate impact paradigm-since
it seems exceedingly unlikely that a state employer in the 1800s or 1900s
would adopt a policy that had the impact of virtually entirely excluding
men from desirable civil service employment. 25 5 So too across many other
251 See, e.g., Dvorak, supra note 10.

252 See, e.g., Alexander, supra note 70, at 121 (noting that "[fgrom the outset, the drug war
could have been waged primarily in overwhelmingly white suburbs or on college campuses"
based on actual drug crime prevalence, and going on to describe what those practices would
have looked like).
253 See, e.g., N.C. State Conf. of the NAACP v. McCrory, 831 F.3d 204, 215, 229 (4th Cir.
2016) (describing the steps that the North Carolina state legislature took to ensure that Black
citizens, not white citizens, were burdened by the state's voter ID law).
255 Indeed, the idea that a government would, even today, adopt any policy that boxed
virtually all men out of desirable government positions seems implausible. At the time that
the policy at issue in Feeney was adopted, it was surely unthinkable. See Pers. Adm'r of Mass.
contexts-such as ineffective policing of crimes which disproportionally

affect women, or adoption or implementation of invasive policies
implicating women's health-a reasonable fact-finder may be able to
conclude that the outcome would have been different "but for" the sex of
those affected. 2 6
Importantly, at the present moment, the likelihood of achieving these
goals through the but-for principle seems more likely than through the
traditionally preferred doctrine of disparate impact. As noted supra, the
Supreme Court rejected the disparate impact doctrine in the constitutional
context close to 50 years ago-and it has shown no signs of retreating
from that set of holdings. 257 Moreover, the Court has also limited the reach
of disparate impact across in some statutory contexts, finding it not to be
embodied in the statutory text. 25 8 In general, disparate impact has
remained a consistently controversial and politically polarizing cause of
action, with many lay people and judges continuing to perceive it as not
a true anti-discrimination norm.2 59
In contrast, disparate treatment-the idea that people ought not be
treated differently based on their race, sex, or other protected class
status-rests at the very core of what most people conceptualize as
discrimination. 260 The decisions centering the but-for principle as anti-
discrimination law's core inquiry have been not only joined but authored
by politically conservative justices of the Supreme Court. 26 1 Moreover,
those decisions have situated the but-for principle as anti-discrimination
v. Feeney, 442 U.S. 256, 266, 278 (1979). Note that importantly, a "but for" argument is
different than the "foreseeability" argument rejected in Feeney. See id. at 278.
256 See, e.g., United States v. Morrison, 529 U.S. 598, 630-34 (2000) (Souter, J., dissenting);
Caitlin Dickerson, Seth Freed Wessler & Miriam Jordan, Immigrants Say They Were
Pressured into Unneeded Surgeries, N.Y. Times (Sept. 29, 2020),
https://www.nytimes.com/2020/09/29/us/ice-hysterectomies-surgeries-georgia.html
[https://perma.cc/MY2Y-VQGC].
257 Washington v. Davis, 426 U.S. 229, 237-48 (1976).
258 See, e.g., Alexander v. Sandoval, 532 U.S. 275, 280-81, 293 (2001) (noting that Title VI
only prohibits disparate treatment, and finding no implied private cause of action to enforce
Title VI regulations prohibiting disparate impact discrimination).
259 See, e.g., Selmi, supra note 74, at 704-06; see also Eyer, supra note 9, at 1300-01
(describing results from studies showing that many people do not perceive classic disparate
impact contexts, such as disparate impacts on a protected group arising from testing-based
disparities, as discrimination).
260 See Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n.15 (1977).
261 See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1736-37 (2020); Comcast Corp.
v.
Nat'l Ass'n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1012 (2020); Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 570 U.S. 338, 340 (2013); Gross v. FBL Fin., 557 U.S. 167, 169 (2009).
law's core textual mandate-something that ought to give them

considerable legitimacy among judges of all political persuasions.2 62
Thus, ironically, disparate treatment law-long situated as the less-
preferable alternative to disparate impact-may provide the most
promising avenue today for the effectuation of disparate impact
objectives. Embrace of a true "disparate treatment" standard-in the form
of the but-for principle--could permit meaningful interrogation of
circumstances in which a policy or practice with a differential impact on
a subordinated group is adopted. Because of the systematic nature of
certain types of oppression in our society, it often will be the case that the
majority (whites, men, majority religions, cisgender people) would not
impose similarly burdensome measures were they themselves the ones
impacted. As such, the but-for principle can do much (though certainly
not all) of the hoped-for work of the disparate impact paradigm in
effectuating anti-subordination goals-and may even be a more effective
method of achieving such goals today.
D. The "Motivating Factor"Paradigm

The "motivating factor" paradigm is the final doctrinal alternative that
has long attracted the attention of anti-discrimination scholars and
advocates. 2 63 Under a "motivating factor" burden-shifting approach, a
plaintiff need only initially show that the race or sex or other protected
class status was a "substantial" or "motivating" factor, at which point the
burden shifts to the defendant to prove they would have taken the same
2 64
action even in the absence of protected class status's role. Under some,
versions of the doctrine, such a "same action" showing would preclude
liability-while in others, it would simply serve to limit the available
relief. 26s
The appeal of motivating factor burden-shifting is perhaps unsurprising
from the perspective of an anti-discrimination law advocate, since in
262 See Bostock, 140 S. Ct. at 1739; Comcast, 140 S. Ct. at 1014-15; Nassar, 570 U.S. at
350-52; Gross, 557 U.S. at 176-77.
263 See Sullivan, supra note 74, at 358-59 (describing the extensive attention paid to
"motivating factor" liability in the scholarly literature and observing that "one wonders what
all the fuss is about" in view of the disappointingly small impact that "motivating factor" has
had).
2" See 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B); Price Waterhouse v. Hopkins, 490 U.S.
228, 258 (1989) (plurality opinion).
theory it considerably lightens the burden of proof that rests on the

plaintiff-putting the burden of disproving but-for causation on the
defendant. Perhaps for this reason, "motivating factor" burden-shifting
has-like "disparate impact"-attracted considerable support and
attention, in the scholarly, litigation, and legislative contexts. 266 Indeed,
preserving motivating factor liability has been a major project of
progressive legal academics, and of the wider advocacy community-a
project that has often been situated as oppositional to the but-for
principle. 267
But like disparate impact, the "motivating factor" paradigm has failed
to generate the results for which advocates have hoped. Thus, as Charles
Sullivan has shown, the "motivating factor" paradigm has failed to
revolutionize outcomes in anti-discrimination law. 268 As a claim,
motivating factor continues to be much less commonly raised than
"McDonnell Douglas" or other but-for-focused claims. 269 Moreover,
"motivating factor" claims face equally low levels of success where they
are litigated. 270 As such, the motivating factor paradigm-while much
heralded-has in practice had little impact on the difficulties that anti-
discrimination litigants face.
But the problems stemming from the progressive focus on the
"motivating factor" paradigm have not been restricted to its limited
effectiveness. Problematically, the campaign to preserve motivating
factor has at times leaked over into counter-productive (and inaccurate)
hyperbole about the limited scope of the but-for principle. Thus, in cases
like Gross, Nassar, and Comcast, where the Court restricted the
availability of motivating factor liability-instead making the but-for
principle the central required inquiry-some progressive advocates made
false and damaging claims about the but-for principle. 271 Most notably,
266 See Sullivan, supra note 74, at 358-59.

267 See, e.g., sources cited supra note 93.
268 See Sullivan, supra note 74, at 365-66, 396-98.
269 Id.
270 Id.
271 See, e.g., Congressional Black Caucus Statement on the Supreme Court Oral Arguments
for Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media (Nov. 25, 2019),
https://davis.house.gov/statements/congressional-black-caucus-statement-on-the-supreme-
court-oral-arguments-for-comcast-corp [https://perma.cc/9MUE-73AU]; Taylor Telford,
Race Discrimination Standards Hang in the Balance as Supreme Court Takes Up Comcast
Suit, Wash. Post (Nov. 13, 2019) (quoting Kristen Clarke, Executive Director of the National
Lawyers' Committee for Civil Rights),
https://www.washingtonpost.com/business/2019/11/13/race-discrimination-standards-hang-
such advocates contended that the but-for principle would require a

plaintiff to demonstrate the absence of other causal factors (i.e., that their
protected class status was the sole cause), something that would make
anti-discrimination cases "nearly impossible" to win.27 2
It is no doubt correct that a requirement to demonstrate sole cause (i.e.,
to disprove the absence of other causal factors) would be an
insurmountable requirement for most plaintiffs. Virtually all
discriminatory decision-making involves multiple impetuses as a matter
of fact, making it very difficult (if not impossible) to show that class status
was the sole cause. Thus, for example, many instances of disparate
treatment by the government-indeed even many instances of
"intentional discrimination," (like, arguably, some Voter ID laws)-may
still have some legitimate causal factors underlying them. So too in the
employment context, many if not most termination cases will involve
circumstances where the employee has done something legitimately
wrong, even if that same conduct would not have resulted in the firing of
.
a majority group employee. 273
Importantly, however, the claims of anti-discrimination scholars and
advocates-that the but-for standard requires a showing that protected
274
class status was the exclusive consideration-have been wrong. The
balance-supreme-court-takes-up-comcast-suit/ [https://perma.cc/FS4D-YUVS]; Tracy Jan,

Civil Rights Groups Slam Comcast for Trying to Weaken a Key Protection Against Racial
Discrimination, Wash. Post (Oct. 2, 2019) (quoting Clarke and Sherillyn Ifill, President of the
NAACP LDF), https://www.washingtonpost.com/business/2019/10/02/civil-rights-groups-
slam-comcast-trying-weaken-key-protection-against-racial-discrimination/
[https://perma.cc/VY6R-KF6E].
272 See Congressional Black Caucus Statement, supra note 271.
273 See, e.g., McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283-84 (1976) (finding
that a race discrimination claim could proceed where allegation was that several employees,
Black and white, had committed a serious infraction, but only the white employees were fired).
274 The conflation by progressives of "but for" causation and sole cause standards has a long
and problematic history, which appears to have arisen at least in part from misguided strategic
calculations. See, e.g., Eyer, supra note 2, at 999 (discussing the progressive justices'
arguments in Price Waterhouse, which erroneously suggested that plaintiffs under the
McDonnell Douglas paradigm are required to disprove the employer's legitimate non-
discriminatory reason, i.e., prove sole cause). However, the most recent iterations of these
arguments by progressives may be explicable at least in part by efforts by defendants to
harness certain ambiguous language in Gross and Nassar ("the but-for cause" instead of "a
but-for cause") to argue for a sole cause standard. As D'Andra Shu has shown, in the aftermath
of Gross and Nassardefendants have tried to use-at times successfully-this language to
argue in the lower courts that Gross required sole causation. See D'Andra Millsap Shu, The
Coming Causation Revolution in Employment Discrimination Litigation, 42 Cardozo L. Rev.
(forthcoming 2021) (manuscript at 2-5) (on file with author). As Shu has argued, Bostock-
but-for standard does not require a showing that protected class status was
the sole cause, or that no other factors played a role. 275 Thus, the employee
who committed an infraction-but would not have been fired were they
outside the protected class-prevails under the but-for standard. 276 So too,
government actions that may have some legitimate underlying
justification-but would not have been taken "but for" the protected class
status of those affected-will result in defendant liability under the but-
for approach. 277 As long-standing articulations of the but-for principle (in,
for example, tort law) make evident, it is simply erroneous to contend
otherwise. 278
Moreover, if there were any doubt on this front, the Supreme Court's
recent decision in Bostock v. Clayton County eliminates it. 279 As the Court
holds in Bostock, under the but-for standard "a defendant cannot avoid
liability just by citing some other factor that contributed to its challenged
employment decision. So long as the plaintiff's [protected class status]
was one but-for cause of that decision, [it] is enough to trigger the law."
280 As the Court properly observes, "[t]his can be a sweeping standard,"
since "[o]ften, events have multiple but-for causes." 2 8 1 As such, under the
but-for principle, protected class status need only be one factor among
many-as the Court put it in a prior decision, the "straw that broke the
camel's back." 2 82
At this point, it should be evident that, understood properly, the but-for
principle can amply accommodate cases in which there are "mixed
motives"-or more clearly stated, multiple causal factors. The mere fact
that an employer may have been partially spurred to action by legitimate
misconduct, or that a government entity may have responded in part to
legitimate public concerns, does not answer the question of whether the
employer or government entity has violated the but-for principle. Indeed,
there are likely to be many cases in which some legitimate considerations
which makes absolutely clear that the "but for" standard is not a sole cause standard-should
lead to a reversal of these precedents. Id. at 27-30.
275 See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739 (2020).
276 Id.; see also McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283-84 (1976).
277 See, e.g., Burrage v. United States, 571 U.S. 204, 211 (2014).
278 See, e.g., Restatement (Third) of Torts § 26 cmt. c (Am. L. Inst. 2010).
279 See Bostock, 140 S. Ct. at 1739.
280 Id.
281 Id.
2 82
Burrage, 571 U.S. at 211.
played a role-but in which the adverse or harmful action or policy would

not have been taken "but for" the protected class status of those affected.
Thus, insofar as our concern is the need to accommodate cases in which
multiple casual factors-legitimate and illegitimate-played a role, the
but-for principle can comfortably accommodate such cases. While it
would not necessarily bring the presumed strategic benefits of shifting the
burden of proof to the defendant, those presumed strategic benefits have
in fact never materialized. Moreover, as described at greater length in Part
V, infra, continuing to endeavor to situate "motivating factor" as the
central defining standard of anti-discrimination law could come with
considerable risks, including the risk of accidentally instantiating a strong
requirement of self-aware intent in anti-discrimination law doctrine.
V. HEADWINDS TO RESOLVING THE THEORETICAL CRISIS IN ANTI-

DISCRIMINATION LAW
The foregoing Parts have made the case that there is a long-standing
theoretical crisis in anti-discrimination law-arising from the conflation
of "disparate treatment" and "discriminatory intent"-and that now is the
time to address it. As laid out in Parts II-IV, the Supreme Court's recent
cases-centering the but-for principle as the central defining feature of
anti-discrimination law-provide considerable potential to do so. But it is
important to acknowledge that there remain significant potential
headwinds to such a project-including the entrenched views of many of
those most committed in theory to expanding anti-discrimination
protections. This Part takes up potential obstacles to resolving the
theoretical crisis in anti-discrimination law, addressing in turn, likely
progressive headwinds to a but-for project, potential legal headwinds, and
likely sites of judicial resistance to refocusing anti-discrimination law
around the but-for principle.
A. ProgressiveHeadwinds
Without the buy-in of those committed to strengthening the protections
of anti-discrimination law-anti-discrimination advocates and scholars-
it is clear that a but-for-centered approach to revitalizing anti-
discrimination law will not succeed. Indeed, while the growth of the but-
for principle in anti-discrimination law may be inexorable (as evidenced
by progressives' failure to stop its spread), its effects and application
within anti-discrimination law will not be. If anti-discrimination scholars
and advocates do not take up the opportunity to define the significance

and proper application of the but-for principle, it is likely not only that the
opportunity to resolve the theoretical crisis at the heart of discrimination
law will be missed-but that discrimination defendants and conservative
judges will define the but-for principle in ways that restrict anti-
discrimination litigants' claims. 283
This outcome is of course not inevitable. Anti-discrimination law
scholars and advocates can seize the initiative in defining the significance
and proper application of the but-for principle. So why might progressive
scholars and advocates eschew this opportunity? This Part recognizes that
embracing the but-for principle would run counter to a long-standing set
of commitments that many scholars and advocates have embraced:
commitments to oppose textualism, to oppose anti-classificationist anti-
discrimination regimes, and most fundamentally to oppose the but-for
principle itself.284 Thus, embracing the potential of the but-for principle
will require anti-discrimination scholars and advocates to abandon-or at
least moderate-long-standing commitments, across a host of domains.
This Part suggests that while adhering to intellectual and doctrinal
commitments is important, in this instance doing so would be ill-advised.
Continuing to eschew the but-for principle because of its tension with
existing progressive commitments is unlikely to do anything to further
those commitments, but would sacrifice considerable opportunities for
addressing the widespread pathologies in anti-discrimination law. Thus,
the future of anti-discrimination law may depend in part on anti-
discrimination scholars' and advocates' willingness to be flexible in
recognizing the opportunities that the current moment does-and does
not-present for the reform of anti-discrimination law.
1. Opposition to Textualism
One of the most obvious potential obstacles to progressive embrace of
the but-for principle is the Supreme Court's grounding of the but-for
principle in textualism. 281 What is a strength of the but-for principle in its
ability to provide effective arguments in the courts, becomes a weakness
283 See, e.g., Pelcha v. MW Bancorp, Inc., 998 F.3d 318, 324 (6th Cir. 2021).
284 Others have also written about progressive concerns about the but-for principle and
possible responses to them, see Jessica Clarke, The Virtues of Formal Causation 54 (Feb. 13,
2021) (unpublished manuscript) (on file with author).
285 See generally supra Part H (describing the Supreme Court's treatment of the "but for"
principle as arising from the plain text of anti-discrimination law).
in attracting progressive adherents. Because textualism has long been

associated with conservative individuals and conservative causes-and
because many progressive scholars have devoted their life's work to
critiquing textualism-many progressive commentators remain
286
committed to opposing textualism. Thus, it is common to hear
progressive commentators critique textualism, to opine that it cannot
produce determinate outcomes, and to argue that it does not reflect the
reality of federal judicial practice. 287
This opposition to textualism is especially heightened in the context of
the but-for principle itself, since many progressive scholars are on record
articulating the view that the Court was wrong in cases like Gross and
Nassar in suggesting that the but-for principle follows as a matter of plain
textual meaning.288 Rather, many progressive scholars suggested that the
words "because of [protected class status]" did not necessarily connote
but-for causation, but instead connoted a "motivating factor" burden-
shifting paradigm. 289 Thus, not only have many progressives committed
themselves to critiquing textualism as a methodology, many have
specifically articulated the view that the core premise that makes the but-
for principle so potentially powerful-its textualist grounding-is an
illusion.
Thus, it should perhaps come as no surprise that even in the aftermath
of Bostock-a major victory for progressive textualism and for the but-
for principle-some progressives continued to question the premise of
286 See, e.g., Doug Kendall & Jim Ryan, The Case for New Textualism, Democracy (2011),
https://democracyjournal.org/magazine/2 1/the-case-for-new-textualism/
[https://perma.cc/LA7V-3U65] (making this observation and arguing against this tendency).
Note that there is a sizeable and growing group of progressives who disagree with this
perspective, including this author. See, e.g., Katie Eyer, Progressive Textualism (articulating
a normative theory of progressive textualism) (unpublished manuscript).
287 See id.; see also, e.g., Scott Fruehwald, Pragmatic Textualism and the Limits of Statutory
Interpretation: Dale v. Boy Scouts of America, 35 Wake Forest L. Rev. 973, 991-92 (2000)
(collecting critiques of textualism); Cary Franklin, Living Textualism, 2020 S. Ct. Rev.
(forthcoming 2021) (manuscript at 4-8) (on file with author) (critiquing textualism in the
context of a critique of Bostock).
288 See, e.g., Brief for Employment Law Professors as Amici Curiae at 5-13, Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (No. 12-484); Brief for Employment Law
Professors as Amici Curiae at 4-10, Comcast v. Nat'l Ass'n of Afr. Am.-Owned Media, 140
S. Ct. 2561 (2020) (No. 18-1171). In the interest of full disclosure, this author joined the
aforementioned brief in Nassar, although my views on the proper textual interpretation of the
statutory language under review there have shifted since that time.
289 See Brief for Employment Law Professors as Amici Curiae at 6, Nassar, 570 U.S. 338
(No. 12-484).
whether textualism truly accounted for the outcome, or whether the

opinion truly represented an unambiguous victory. Instead, some who
supported the outcome in Bostock nevertheless seemed at pains to validate
the dissents' contentions: that the but-for principle did not produce
determinate outcomes, and that text was inadequate to resolve the case. 290
Others critiqued the opinion as a covert effort to sneak textualism into
anti-discrimination law, with the purpose of hastening affirmative
action's demise. 291 In short, long-standing commitments are, and perhaps
ought to be, difficult to set aside, and for many scholars and advocates
point away from a full-throated embrace of textualism and the but-for
principle.
But this Article suggests that allowing opposition to textualism to stand
as a barrier to the potential of the but-for principle is misguided. One need
not accept all of the claims of textualism's defenders in order to harness
the potential of textualism as a methodology. 292 Anti-discrimination law
is an area in which the courts have strayed obviously and considerably
from the legal texts they are charged with interpreting-with consistently
anti-plaintiff results. 29 3 The but-for principle provides important
290 See, e.g., Franklin, supra note 287, at 4-8; Mitchell N. Berman
& Guha Krishnamurthi,
Bostock was Bogus: Textualism, Pluralism, and Title VII 97 Notre Dame L. Rev. (forthcoming
2022) (manuscript at 28-30) (on file with author); Anuj Desai, Text Is Not Enough, 93 U.
Colo. L. Rev. (forthcoming 2021) (manuscript at 2-4) (on file with author); In Lieu of Fun,
supra note 101, https://youtu.be/zbxMG9Y9eB4?t-2622 [https://perma.cc/RBF5-YQ9M].
But cf. Eyer, supra note 101, at 73-80 (arguing before Bostock that textualism compelled the
result the Court ultimately reached); Grove, supra note 100, at 267-69 (2020) (suggesting that
Bostock was a legitimate application of textualism, but helps demonstrate that there are two
forms of textualism, one of which, "formalistic textualism," is much more likely to lead to
determinate results); Andrew Koppelman, Bostock, LGBT Discrimination, and the Subtractive
Moves, 105 Minn. L. Rev. Headnotes 1, 8-38 (2020) (describing Bostock as clearly correct
on the text, and describing why the "subtractive moves" made by the dissenters and some
lower court judges in similar contexts are contra-textual). Of course, several conservatives
also critiqued Bostock as an application of textualism. In addition to the dissenters, see, e.g.,
Josh Blackman & Randy Barnett, Justice Gorsuch's Halfway Textualism Surprises and
Disappoints in the Title VII Cases, Nat'l Rev. (June 26, 2020),
https://www.nationalreview.com/2020/06/justice-gorsuch-title-vii-cases-half-way-
textualism-surprises-disappoints/ [https://perma.cc/P5K9-XSZ7].
291 See, e.g., Cass Sunstein, Gorsuch Paves Way for Attack on Affirmative Action,
Bloomberg (June 17, 2020), https://www.bloomberg.com/opinion/articles/2020-06-
17/gorsuch-gay-rights-opinion-targets-affirmative-action [https://perma.cc/PH4Z-N6WN].
292 As I am developing more fully in other forthcoming work, I believe there are important
reasons to embrace textualism as a normative matter. See Eyer, supra note 286. But one need
not embrace this normative perspective in order to see the strategic utility of textualism as a
legal methodology.
293 See supra Part III.
opportunities to remediate this, and to resituate anti-discrimination law

around a true disparate treatment paradigm. 294 In a world in which it is
clear that the Supreme Court is not going to reverse course and abandon
the idea that the but-for principle is centrally important and textually
mandated, it is not clear what might be gained by continuing to critique
the principle's premises (as opposed to harnessing it).
Moreover, more generally, the time may have come for progressives to
cut loose of their long-standing opposition to textualism. Textualism is
295
the ascendant method of statutory interpretation at the Supreme Court.
As progressive Justice Elena Kagan has observed one could even claim
that "we are all textualists now." 2 96 It is important for progressives to be
insiders to the conversation about what textualism entails, both as a matter
of theory, and in its application to individual cases.297
2. Opposition to Anti-ClassificationistApproaches to Anti-

DiscriminationLaw
A second set of progressive commitments that the but-for principle
comes up against is the long-standing progressive opposition to anti-
classification approaches, animated in considerable part by fears over the
future of affirmative action. Starting as early as the 1960s, and expanding
in the 1970s, progressive advocates and scholars began to recognize that
anti-classificationist approaches like colorblindness-or today, the but-
for principle-could pose a risk to measures intended to remediate both
historical and current discrimination. 298 Most obviously, affirmative
action, in which minority groups may be given an advantage in
admissions or employment (in order to account for historical and
contemporary discrimination or to ensure diversity), are in obvious
tension with an unstinting anti-classificationist perspective (and with the
but-for principle). 299
294 See supra Parts III-IV.

295 See Jesse D.H. Snyder, How Textualism Has Changed the Conversation in the Supreme
Court, 48 U. Balt. L. Rev. 413, 421-22 (2019).
296 Thomas R Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 Yale L.J. 788,
793 & n.10 (2018).
297 See Katie Eyer, Progressive Textualism and LGBTQ Rights, SCOTUSblog (June 16,
2020), https://www.scotusblog.com/2020/06/symposium-progressive-textualism-and-lgbtq-
rights/ [https://perma.cc/74P9-WZ9H].
298 See, e.g., Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values
in Constitutional Struggles Over Brown, 117 Harv. L. Rev. 1470, 1535-36 (2004).
299 See id. at 1535.
But if this is the concern animating a reluctance of progressives to

embrace the but-for principle, this too seems misguided. Affirmative
action is already regarded as disparate treatment in the constitutional
context-and likely will continue to be so regarded, regardless of the but-
for principle. 30 0 And the exemption for bona fide affirmative action plans
in the Title VII context was, at its origins, explicitly contra-textual (and
thus would be potentially vulnerable to challenge in today's textualist era,
regardless of the but-for principle). 301 Finally, as scholars such as Stacy
Hawkins have shown, most cases defended under traditional affirmative
action plans today lose in any event-whereas diversity programs (in
which protected class status may not be a but-for cause) are far less likely
to result in successful "reverse discrimination" claims. 302 In short, the
outcomes that might be feared for affirmative action from adopting an
anti-classification approach have largely already come to pass and are
unlikely to be reversed by eschewing the but-for principle.
Moreover, as some have observed, the next set of battles regarding
color-blindness are likely to center on race-intentional remedial policies
that do not explicitly classify, and here a turn to the but-for principle could
have benefits for preserving such policies. Such race-intentional
policies-such as, for example, government programs intended to reduce
racial disparities in health outcomes, efforts to locate schools in
geographical locations that promote integration, or indeed disparate
impact doctrine itself-seek to achieve racially egalitarian goals without
formally racially classifying. 30 3 Such race-intentional (but non-
300 See Richmond v. J.A. Croson, 488 U.S. 469, 505 (1989).
301 See United Steelworkers of Am. v. Weber, 443 U.S. 193, 201 (1979).
302 See, e.g., Stacy Hawkins, How Diversity Can Redeem the McDonnellDouglas Standard,
83 Fordham L. Rev. 2457, 2467-69 (2015).
303 Unlike programs like affirmative action in which an identifiable person may be treated
differently based on their race, in the context of race-intentional policies, no specifically
identifiable individuals are treated differently. Thus, for example, while the decision to site a
school in a geographic location that will produce the maximum amount of racial integration
may have a partial racial motivation, it does not treat individuals-or groups-differently
based on race. Cf. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,
789 (2007) (Kennedy, J., concurring) (noting that "[s]chool boards may pursue the goal of
bringing together students of diverse backgrounds and races through other means, including
strategic site selection of new schools; drawing attendance zones with general recognition of
the demographics of neighborhoods; allocating resources for special programs; recruiting
students and faculty in a targeted fashion; and tracking enrollments, performance, and other
statistics by race. These mechanisms are race conscious but do not lead to different treatment
based on a classification that tells each student he or she is to be defined by race, so it is
unlikely any of them would demand strict scrutiny to be found permissible.").
2021 ] The But-For Theory of Anti-DiscriminationLaw 1687
classifying) policies are a central part of our societal and governmental

efforts to address racial inequities, and thus credible civil rights law
challenges to them could be catastrophic.
To date, most courts (including the Supreme Court) have shown little
appetite for characterizing such race-intentional policies as a form of
intentional discrimination.304 But as scholars such as Professor Kim
Forde-Mazrui have observed, such race-intentional policies might appear
to be in jeopardy, since the Supreme Court has articulated the view that it
does not matter for constitutional scrutiny purposes whether government
acts with an intent to hurt or benefit a protected group. 305 Since non-
classifying actions taken with an intent to harm African Americans would
no doubt demand strict scrutiny, this syllogism suggests that non-
classifying actions taken with an intent to benefit African Americans must
survive such scrutiny as well.3 0 6
But the logic of this syllogism appears questionable if we view the
issue through the lens of the but-for principle. Thus, for example, a
program designed to reduce racial disparities in health outcomes may
have been adopted with a purpose to benefit African Americans, but it is
unlikely that it is actually disparate treatment, i.e., that it would not have
been adopted "but for" the race of those affected. 307 Indeed, if whites
systematically experienced disproportionally high levels of infant and
maternal mortality, infectious disease deaths, neglect of their pain
complaints, and other health disparities, it seems quite unlikely that
government would not take steps to remediate that situation.
304 Over the last several decades, impact litigation organizations have repeatedly asked the
Supreme Court to take up this issue and squarely address it, and it has declined to do so. See
Katie Eyer, Constitutional Colorblindness and the Family, 162 U. Pa. L. Rev. 537, 600 n.292
(2014) (collecting petitions for certiorari review on this issue). Even in cases where the
question arguably was squarely presented, a majority of the Court has shown itself to be
uninterested in taking it up. See, e.g., Ricci v. DeStefano, 557 U.S. 557, 594 (2009) (Scalia,
J., concurring) (in an opinion not joined by any other member of the Court, arguing that the
Court should take up the issue of whether disparate impact doctrine-a form of race-
intentional action-is unconstitutional under the Equal Protection Clause).
301 See Kim Forde-Mazrui, The Constitutional Implications of Race-Neutral Affirmative
Action, 88 Geo. L.J. 2331, 2333-34 (2000).
306 Id.
307It is important to note that this is only true for-and I am only focused herein on-
programs that also do not explicitly racially distinguish at the individual level. (So, in the
example given above, the assumption is that the program makes its services available to all,
even though its objective may be to remediate racial disparities). Where programs explicitly
racially distinguish among individuals in eligibility criteria, they would fall under the logic of
the Supreme Court's affirmative action opinions instead.
So too, non-classifying integration-promoting measures seem much

more obviously acceptable under a but-for approach than under an intent
approach. For example, a school district may in some sense be said to
have racial intent in situating a school in a neighborhood that will
maximize integration-but it seems a much more difficult claim to
suggest that their actions were disparate treatment, i.e., that they would
not have been taken "but for" the race of those affected. As such, with the
exception of contexts where government for political reasons puts the
brunt of its integrationist measures on minority communities-something
that ought to be impermissible-the but-for principle generally would
find no liability for race-intentional but non-classificationist integration
measures.
Thus, while progressives' chariness of anti-classificationist approaches
in anti-discrimination law arose from legitimate concerns about
preserving race conscious remedial measures, eschewing the but-for
principle is unlikely to meaningfully further that project today. Current
conditions already place affirmative action in jeopardy regardless of
whether the but-for principle is embraced by progressives. 308 And the but-
for principle is likely to be superiorto the current conceptually confused
regime for the fights over race-intentional but non-classifying remedial
measures that are yet to come. In short, progressive embrace of the but-
for principle seems unlikely to hasten the demise of race conscious
remedial measures and would afford considerable opportunities for
reforming the rest of anti-discrimination law.
3. Opposition to the But-For Principle
The final commitment that may make progressives reluctant to

embrace the potential of the but-for principle is of course opposition to
the but-for principle itself. As described supra, the foundational cases that
have recognized the but-for principle as the central textual principle of
anti-discrimination law-Gross,Nassar, and Comcast-were all cases in
which progressives vigorously opposed the outcome.30 9 Instead,
progressives have argued for the application (or at least availability) of a

309 See supra Part II and Sections IV.D, V.A.
2021 ] The But-For Theory of Anti-Discrimination Law 1689
"motivating factor" burden-shifting paradigm. 310 This Part suggests that,

although progressives may have had good reasons for once arguing for a
"motivating factor" paradigm, those reasons ought not deter progressives
from embracing the but-for principle today.
As an initial matter, it appears clear that outside of certain specific
circumstances-where the law quite clearly calls for a "motivating
factor" standard-most anti-discrimination law claims will today be
subject to the but-for principle. 3 11 Indeed, the most recent case holding
that "but for" is required, Comcast, was a unanimous decision, joined by
all of the progressive Justices on the Court.3 12 Even Justice Ginsburg
mostly joined the opinion, acknowledging that precedent has held that the
but-for principle has an important role in anti-discrimination law. 313 As
such, it seems unlikely that there is much to be gained by continuing to
argue for "motivating factor" as the preferred standard, outside of the
context of explicit statutory language.
As importantly, however, it is not at all clear today that "motivating
factor" is a superior alternative to "but for." As described at greater length
in Section V.B, infra, the very wording of the "motivating factor"
standard (using the language of "motive") offers opportunities for
defendants to argue that the law demands a showing of self-aware
intent-something that could have devastating effects for the contexts in
which it is applied. While those familiar with the history of the Civil
Rights Act of 1991 will surely be aware that this was not the intent of
Congress (instead Congress's intent was to lower the burdens on anti-
discrimination litigants), there are already Supreme Court cases that
reflect this understanding of the "motivating factor" provision. 314 As such,
as elaborated in Part V.B., progressives ought to be seeking to cabin, not
expand, the application of the "motivating factor" standard in the law.
310 See supra Section IV.D; see also Hillel J. Bavli, Causation in Civil Rights Legislation,
73 Ala. L. Rev. (forthcoming 2021) (manuscript at 3-5) (on file with author) (arguing against
the but-for causation standard, and suggesting that the "NESS" approach to causation be
adopted instead in anti-discrimination law).
311 See sources cited supra notes 90, 96-105, 124 and accompanying text.
312Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1011-12
(2020).
31 Id. at 1019 n.* (Ginsburg, J., concurring in part).
314 See infra notes 346-50 and accompanying text. But cf. Bostock v. Clayton Cnty., 140 S.
Ct. 1731, 1739-40 (2020) (recognizing that this part of the Civil Rights Act of 1991 was
simply intended to impose a lower standard of causation).
But even if this concern did not exist, it is far from clear that
"motivating factor" burden-shifting is indeed superior to "but for." As
discussed supra, Charles Sullivan has shown that the "motivating factor"
provision has not had the on-the-ground effects that advocates had
hoped. 3 15 "Motivating factor" cases do not succeed at materially higher
rates, and the lion's share of anti-discrimination claims continue to be
raised under other paradigms (most notably the McDonnell Douglas
paradigm, which the Supreme Court has made clear is associated with
"but for"). 316 As Professor Sullivan details, advocates have been reluctant
to bring motivating factor claims because of concerns that juries will
"spli[t] the baby" (finding for the plaintiff on "motivating factor" but for
the defendant on "but for")-something that would leave the plaintiff
effectively without relief. 31 And judges have struggled to understand or
embrace the concept of what it might mean to find liability based on
something short of but-for causation. 3 18
Moreover, it is also important to note that there is far less daylight
between the "motivating factor" approach and the but-for approach than
progressives have traditionally suggested. As described in Part IV, supra,
progressives have at times suggested that the but-for principle demands
something akin to "sole" causation-perhaps to make their case for why
"motivating factor" is so urgent. 3 19 But this is false. Just like under the
motivating factor approach, under "but for," protected class status need
only be one consideration of many. As the Supreme Court put it, "a
defendant cannot avoid liability just by citing some other factor that
contributed to its challenged employment decision. So long as the
plaintiff's [protected class status] was one but-for cause of that decision,
that is enough to trigger the law."3 20
In short, while progressives may once have had good reasons for
thinking it was important to fight the turn to "but for," those reasons have
passed. "Motivating factor" has proved to be both less powerful, and more
risky than its proponents initially envisioned. And the turn to "but for" is
here to stay. Thus, today, there is little to be gained-and much to be
lost-by declining to embrace the potential of the but-for approach.
31 See Sullivan, supra note 74, at 365-66, 396-98.

316 Id. at 366 & n.42, 379; Eyer, supra note 2, at 981 n.73.
317 Sullivan, supra note 74, at 396-97.
318 Id. at 383-87.
320 Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739-40 (2020).
B. Legal Headwinds
Even if anti-discrimination scholars and advocates wholly embrace the
but-for principle, there will of course remain legal obstacles to using the
principle to effectuate the project described herein. As described in Part
I, supra, there is ample case law that uses the language of "intent" or
"purpose" and thus could provide a basis for arguments that a strong form
of intent is indeed a legal requirement. And the process of using the but-
for principle to attempt to dismantle the network of technical doctrinal
rules that have been engrafted onto the anti-discrimination law inquiry
will surely not be easy. Moreover, some anti-discrimination statutes,
including Title VII, also include language that could complicate the
argument that "but for" is the central defining inquiry in anti-
discrimination law.
This Section takes up those various legal obstacles and suggests that-
while they are real-they are not different in kind from those that any
major project of anti-discrimination law reform would face. Moreover,
because the project of resolving the theoretical crisis in anti-
discrimination law will necessarily be an iterative and multi-sited one, it
should not be viewed as an all or nothing affair. Rather, there are likely
to be many small victories-and many small losses-as the civil rights
community attempts to resituate anti-discrimination law around a true
disparate treatment standard, i.e., the but-for principle. It is important to
recognize that just as the conceptual crisis in anti-discrimination law took
many years to create, so too it is likely to take years to resolve. Current
cases offer the opportunity to begin that movement-and to secure
incremental victories for anti-discrimination litigants-but they will
require consistent and strategic action to produce their most significant
results.
1. Case Law
There are two fronts on which case law may stand as an obstacle to the
project described herein: (1) case law may be used to argue that the but-
for principle is not in fact the central defining principle of anti-
discrimination law (and that, for example, a strong form of self-aware
intent requirement exists); and (2) case law may be used to object to the
application of the but-for principle, suggesting that precedent demands a
different, more technical approach. As set out below, this second category
of case law should not be viewed as a reason not to pursue the but-for
project. Indeed, the very reason why a textualist but-for principle is

important is the opportunities it offers for dismantling this network of
technical anti-plaintiff rules. And the first set of obstacles, while real,
would extend to any effort to resolve the conceptual crisis in anti-
discrimination law. Thus, while the project of resolving the conceptual
crisis in anti-discrimination law will surely be arduous and contested,
contemporary trends in the case law offer the best opportunity that has
existed for doing so in the modern history of anti-discrimination law.
a. PrecedentialObstacles to Centering "But For
"
As described in Part I, supra, the conceptual crisis in anti-
discrimination law has arisen from the conflation of "disparate treatment"
and "intentional discrimination" in the Supreme Court's doctrine. 321 As
such, there are ample cases that use the language of "discriminatory
intent" or "purpose"-even as they simultaneously situate disparate
treatment as the standard. 322 These cases no doubt will provide an
opportunity for those who might oppose a but-for-centered disparate
treatment law to argue the resolution of anti-discrimination law's
conceptual crisis suggested herein is foreclosed.
But it is important to note that any effort to resolve the conceptual crisis
in anti-discrimination law would run up against this difficulty-even one
that sought to resolve the conceptual crisis in favor of an "intent" or
"purpose" standard. As a variety of scholars have observed, there are
significant parts of the Supreme Court's case law that are also
irreconcilable with a true "intent" or "purpose" standard. 32 3 Precisely
because the doctrine has been conceptually confused-conflating
"disparate treatment" with "discriminatory intent"-the full body of what
the Supreme Court has said and done cannot be fully reconciled with
either a pure "disparate treatment" standard or a pure "intent"
approach.32 4
But as described in Part II, supra, recent Supreme Court case law has
tilted toward situating a true "disparate treatment" standard-the but-for

323 See, e.g., Green, supra note 27, at 401-03, 415-17; Banks & Ford, supra note 40, at
1082-84; Selmi, supra note 60, at 287-89; Amy L. Wax, The Discriminating Mind: Define It,
Prove It, 40 Conn. L. Rev. 979, 983 (2008); see also supra notes 38-46 and accompanying
text (discussing this issue in depth).
principle-as the textualist core of anti-discrimination law. As illustrated

by the plaintiffs' success in Bostock, this offers considerable opportunities
for arguing that a disparate treatment standard must be dispositive. While
this argument is not likely to succeed in every case, as described in Part
III it offers myriad everyday possibilities for scholars, litigants, and social
movement actors to argue that the conceptual core of disparate treatment
law is indeed a "disparate treatment" principle-that the law has been
violated if the outcome would have been different "but for" the protected
class status of those affected. While not every case that raises this
argument is likely to prevail, simply making this the widespread message
of anti-discrimination advocates and scholars is precisely what is needed
to ultimately effectuate systematic reform.
Importantly, as described in Parts II and III, no sweeping Supreme
Court decision is necessary in order to allow advocates to adopt this
approach. Existing cases-including recent cases such as Gross, Nassar,
Comcast, and Bostock (as well as older cases like Manhart and
McDonald)-offer ample opportunity to argue that the but-for principle
32 5
is already the central defining inquiry of anti-discrimination law. As
described in Part III, moreover, the potential uses of this argument range
from individual trial-level litigants arguing that technical doctrines cannot
be used to dismiss their claim, to Supreme Court advocates arguing for
the abolition of a major doctrinal obstacle to plaintiffs' success. And
while some cases are likely to succeed-and others to lose-the but-for
principle could at a minimum provide some relief now for the many anti-
discrimination litigants for whom technical doctrines currently pose deep
obstacles to success.
Moreover, it is precisely this iterative process-of making multi-sited
arguments that a true disparate treatment standard lies at the core of anti-
discrimination law-that is likely to ultimately be necessary to resolve
the conceptual crisis in anti-discrimination law. The conceptual crisis in
anti-discrimination law has been long-standing, and we are not going to
fix it overnight. Rather, like most other important movements in the law,
it will take time, patience, effort, and consistent messaging to help shift
the discourse-and the law-to an unqualified embrace of the but-for
principle. Importantly, just as the same-sex marriage movement saw
losses along the way, this movement too is unlikely to see unstinting
325 See supra notes 80-92, 98-103 and accompanying text.

victory. 326 But as the Supreme Court's decision in Bostock makes clear,
even shy of achieving its ultimate goals, a "but for" movement may
produce important reforms (big and small) for anti-discrimination
litigants.
b. PrecedentialObstacles to Applying "ButFor"

As described above, a project of resolving the conceptual crisis in anti-
discrimination law is likely to face precedent-based challenges even in
establishing "but for" as the law's central focus. But even taking for
granted that the but-for principle applies, there will be a second level of
precedent-based arguments that are sure to be raised in individual cases,
as the but-for principle comes into conflict with the network of technical
rules that the courts have engrafted onto anti-discrimination law. As set
out below, this is not a reason for failing to pursue the project of resolving
the conceptual crisis in anti-discrimination law-indeed, it should be seen
as the central reasonfor undertaking such a project.
As described in Parts I-II, the consequence of the theoretical crisis in
anti-discrimination law has been judicial law-making run amok. Without
any central defining principle with which to oppose the hyper-
technicalization of disparate treatment law, advocates and scholars have
mounted only relatively uncoordinated and ineffective opposition to these
developments. 327 Especially in the lower courts, the factual question of
discrimination often plays a de minimis role in resolving cases, with the
central focus of the courts and the parties directed at a set of technical
requirements instead. 328 Under these technical rules, plaintiffs typically
lose-even if they have presented evidence from which a "reasonable
jury" could conclude that discrimination took place.32 9
There is thus ample precedent, especially at the circuit court level,
which can be used to argue that a simple focus on the but-for principle is
inappropriate in anti-discrimination cases. Rather, defendants will
argue-and some judges may continue to accept-there are numerous
326It is perhaps too easy to forget that the campaign for marriage equality spanned five
decades and involved innumerable losses before the 2015 decision in Obergefell v. Hodges,
576 U.S. 644 (2015). Ultimately, those losses were all a part of the important iterative
transformation of society that allowed Obergefellto occur. See, e.g., Anthony Michael Kreis,
Marriage Demosprudence, 2016 U. Ill. L. Rev. 1679, 1709-11 (2016).
327 See supra note 77 and accompanying text.
technical inquiries that are instead required as a matter of judicial

precedent. But this is not a reason for failing to pursue a but-for-centered
project-indeed, it is the reason why such a project is so urgently needed.
Without a textualist but-for project, there are far fewer bases for pushing
back on this precedent and suggesting that it is inappropriate. But the but-
for principle itself provides a straightforward, intuitive, and textually
grounded basis for suggesting that these precedents are impermissible.33 0
As set out in Part III, supra, the logic behind the "but for" challenge to
technical anti-discrimination precedents-and the high levels of summary
judgment that they are used to justify-is straightforward. The Supreme
Court has said that the textual center of anti-discrimination law is the
factual question of whether the individual would have fared better "but
for" their protected class status.31 The technical doctrines that derogate
from this have no grounding in the statutory text.3 32 Many bear little or no
relationship to the factual question of whether this particularplaintiff
experienced discrimination.3 3 3 Thus, the but-for principle offers
considerable opportunities to argue that such doctrines are both contra-
textual and illegitimate.
While again, these arguments are unlikely to succeed in every case,
they can provide the foundation for a movement that could ultimately
thoroughly dismantle the obstacles to anti-discrimination litigants'
success. And for each anti-discrimination individual litigant, they offer at
least some opportunity to argue that the facts and circumstances of their
case-rather than a network of technical rules-are important. For those
who persuade the judge in their case to allow their case to go forward-
because on all of the facts and evidence a reasonable jury could conclude
they were treated differently-this opportunity matters.
2. Statutory Language
As described above, one of the principal strengths of using the but-for
principle as the vehicle for resolving the conceptual crisis in anti-
discrimination law is its textual grounding. As the Supreme Court has
held, the plain meaning of the causation language that appears at the heart
of most anti-discrimination laws-"because of' or "by reason of' or "on

the basis of'-is the but-for principle. 334 But there is also other language
in some anti-discrimination law statutes which may complicate arguments
that the but-for principle rests at the center of anti-discrimination law, or
that its principles should extend to all anti-discrimination law claims. 33 5
As set out below, while such language ought to be addressed by advocates
and scholars with care, it need not and should not be read to interfere with
the idea that the but-for principle is anti-discrimination law's central
defining inquiry. While the language of the anti-discrimination laws
varies, this Subsection focuses on Title VII of the Civil Rights Act of
1964, as its wording forms the basis for many of the other contemporary
anti-discrimination laws. 336
Title VII's statutory text prohibits discrimination "because of. . . race,
color, religion, sex, or national origin." 337 Thus, as the Supreme Court
recognized in Bostock, it falls squarely within the Court's holdings that
"the ordinary meaning of 'because of is 'by reason of or 'on account
of'"-and that those terms further connote "the 'simple' and 'traditional'
standard of but-for causation." 338 As such, Title VII can be situated as a
key example of the central textual significance of the but-for principle to
anti-discrimination law. 339 And Title VII plaintiffs-including both those
who raise status-based claims and those who raise retaliation claims-
ought to be able to take advantage of the arguments that the but-for
principle makes available. 34 0
But there is also other language within Title VII that could be used to
argue for a contrary proposition-and specifically, that plaintiffs must
show that defendants possessed self-aware intent. The words "intent,"
"motive" or "discriminatory purpose" (or cognate terminology) appear
multiple times in Title VII-and several times more in the statutory
provision in which Title VII's damages provisions are codified, 42 U.S.C.
§ 1981a. 34 1 Most of the places in which such language appears do not pose
a significant challenge to arguing that the but-for principle is the central

336 See, e.g., Anita S. Krishnakumar, Dueling Canons, 65 Duke L.J. 909, 940 (2016) (noting
that Congress has often used Title VII as the template for newer anti-discrimination laws).
37 42 U.S.C. § 2000e-2(a)(1).
33 Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739 (2020) (citing Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 570 U.S. 338, 346, 350, 360 (2013)).
39 Id.
340 See 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a).
141 See 42 U.S.C. § 2000e, et seq; 42 U.S.C. § 198 1a.
defining feature of Title VII disparate treatment claims. Rather, the

language typically appears in the context of collateral or minor issues that
do not modify Title VII's central proscriptions. 342 However, there are a
few statutory provisions that-while not clearly in conflict with a but-for-
centered project-could potentially be used to argue against it, especially
if anti-discrimination law scholars and advocates are not careful in
addressing them.
Ironically, the most potentially problematic of the references in Title
VII to "motive" or "intent," is the very "motivating factor" language that
progressives successfully argued for in 1991.343 Under 42 U.S.C.
§ 2000e-2(m), added as part of the Civil Rights Act of 1991, "an unlawful
employment practice is established when the complaining party
demonstrates that race, color, religion, sex, or national origin was a
motivating factor for any employment practice, even though other factors
also motivated the practice." 34 4 Those familiar with the history of this
provision's enactment will know that it was not intended to introduce a
new "motive" requirement, but rather, as the Court recognized in Bostock,
34 5
to institute a more "forgiving" causation standard. But that has not
stopped anti-discrimination defendants-and some Justices of the
Supreme Court-from seizing upon the "ordinary meaning" of the word
"motive" to argue that this provision connotes a requirement of motive or
intent in the colloquial sense. 346
Although some progressives-who continue to champion the
"motivating factor" provision-have been reluctant to view this
"colloquial reading" concern as a genuine risk, Supreme Court opinions
suggest otherwise. 34 7 Indeed, the Supreme Court has already suggested
that a textualist reading of the "motivating factor" provisions requires a
showing of "motive" in the colloquial sense, including in the recent cases
3 48
of Staub v. ProctorHospitaland EEOC v. Abercrombie & Fitch Stores.
Thus, for example, in Staub, the Court specifically pointed to the
colloquial meaning of "motive" as the key reason why the Court could
342 See, e.g., 42 U.S.C. § 2000e-2(h) (granting a safe harbor to "bona fide seniority or merit
system[s]," except where those systems are the result of an "intention to discriminate").
343 See supra note 76.
344 42 U.S.C. § 2000e-2(m); Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739-40 (2020).
341 Bostock, 140 S. Ct. at 1739-40.
346 See Staub v. Proctor Hosp., 562 U.S. 411, 418-19 (2011); EEOC v. Abercrombie
&
Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015).

348 Id.
not find that military service was a motivatingfactor in a higher level

manager's actions in a cat's paw case (since a higher level manager
relying on biased inputs from subordinates is not "motivated" by
protected class status-though protected class status might be a "causal
factor"). 349 So too, in Abercrombie, the Court relied repeatedly on the
colloquial meaning of "motive" in finding that an employer was indeed
"motivated" by an employee's "religious practice" when it refused to hire
an individual who it suspected required religious accommodation.3 50
Thus, if the "motivating factor" provision is controlling, it would arguably
require a showing of "motive" in the colloquial sense.
Fortunately, there are strong reasons to believe that the "motivating
factor" provision does not automatically control adjudication of Title VII
cases. The lower courts have long treated the motivating factor and
"because of' provisions of Title VII as alternatives,rather than a singular
standard that must be read in concert-meaning that each is an available
way of bringing a discrimination claim. 35' The Supreme Court adopted
this approach in Bostock, finding that it did not need to grapple with the
meaning of the motivating factor provision because Title VII's "because
of' provision-and its but-for principle-were adequate to resolve the
case. 35 2 If this approach is taken, then the motivating factor provision
should be of little concern to a but-for-centered project. Regardless of
how the motivating factor provision is ultimately construed, it will define
only the contours of an alternative to "but for," not the scope of what those
who choose the but-for approach will be required to demonstrate.
But despite Bostock's important holding on this front, it is critical for
scholars and advocates to be aware of the continuing risk that the
motivating factor provision could pose if not treated with care. There is
language in some of the Supreme Court cases suggesting-contrary to
Bostock-that the motivating factor provision could be read to define how
Title VII's "because of' language should be applied. 3 3 While this reading
of the statute by no means inexorably follows from its text, if adopted it
34 See Staub, 562 U.S. at 418-19. Though the Court went on to find for the plaintiff, it did
so on a rationale considerably more complex and difficult for a plaintiff to meet than a simple
"but for" standard. See id. at 422.
350 See Abercrombie, 135 S. Ct. at 2033.
3 See, e.g., Ponce v. Billington, 679 F.3d 840, 844-45 (D.C. Cir. 2012); see also Desert
Palace, Inc. v. Costa, 539 U.S. 90, 94 (2003) (characterizing § 2000e-2(m) as creating an
"alternative" means of proving an unlawful employment practice).
352 Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739-40 (2020).
3 See, e.g., Abercrombie, 135 S. Ct. at 2032.
could considerably complicate arguments that the but-for principle

represents Title VII's central defining principle (or that that principle does
not entail a showing of "motive" or self-aware intent). Moreover,
progressives-who have viewed the "motivating factor" provision
favorably and thus have pursued arguments that it should be universally
applied-may still be inclined to view such a development favorably, not
seeing the substantial risks that it could bring.35 4 Thus, it is important for
advocates and scholars to proceed with care in ensuring that "motivating
factor" language-within Title VII and other statutes-is treated as an
available alternative-but not the exclusive defining standard for anti-
discrimination litigants' claims.
The other set of statutory references to "purpose," "intent," or "motive"
that seem at first blush to be most problematic for a but-for-centered anti-
discrimination law are those that appear in the provision defining the
availability of damages for Title VII, § 1981a. 355 In that provision, added
by the Civil Rights Act of 1991, Congress specified that compensatory
and punitive damages should be available in cases of "intentional
discrimination," language which could be read to suggest that intent must
be proven in order to secure damages relief.3 56 However, Congress also
went on to immediately define what it meant by "intentional
discrimination"-"not an employment practice that is unlawful because
of its disparate impact."3 57
As set out above, the but-for principle-and indeed any true disparate
treatment standard-remains a disparate treatment claim, "not an
employment practice that is unlawful because of its disparate impact."358
Moreover, as Bostock articulates, even "intentional discrimination" can
be conceptualized in a way that is fully consistent with the "but for"
principle, i.e., an intentional employer action that discriminates in the
literal sense of differentiating, that would not have been taken but-for
protected class status. 359 Thus, while the language of § 1981a is
potentially confusing-and may have reflected Congress's own
conceptual conflation of disparate treatment and discrimination
effectuated with discriminatory intent-it should not pose a bar to the
35 See, e.g., Sullivan, supra note 74, at 360 n.15.

35 See 42 U.S.C. § 1981a.
356 id.
37 Id.
35 Id.; see supra notes 32-38 and accompanying text.
319 Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1742 (2020).
recovery of damages on any true disparate treatment claim (including but-

for claims).
Finally, there is language in the original enforcement provisions of
Title VII, § 2000e-5(g)(1) (still applicable today) which provides that
"[i]f the court finds that the respondent has intentionally engaged in or is
intentionally engaging in an unlawful employment practice charged in the
complaint, the court may enjoin the respondent from engaging in such
unlawful employment practice, and order such affirmative action as may
be appropriate .... "360 Though in theory one possible interpretation of
this language is that discriminatory intent must be proven to secure any
relief, even equitable relief, § 2000e-5(g)(1) has never been understood in
this way. 361 On the contrary, Title VII has always been understood to
permit injunctive relief and other § 2000e-5(g)(1) remedies even for
disparate impact claims. 362 Thus, it seems clear this language does not
impose a showing of self-aware intent at the liability stage in order for
§ 2000e-5(g)(1) remedies to be available. 363 Rather, § 2000e-5(g)(1)'s
requirement of "intentional" action should be understood similarly to the
way that Bostock situates intent-simply as a requirement for intentional
undertaking of an unlawful employment practice on the part of the
defendant. 364
C. JudicialHeadwinds
As described above, while there are legal arguments that can be raised
against a but-for project of reforming anti-discrimination law, there are
also many potential legal avenues for success. But it is important to
acknowledge that "law" itself may not be the only obstacle that the project
of resolving anti-discrimination law's theoretical crisis is likely to face in
the courts. Rather, the existing attitudes and beliefs of judges are also
likely to serve as a potential barrier to reform. In particular, judges' beliefs
that summary judgment is important to preserve judicial resources,
36042 U.S.C. § 2000e-5(g)(1).

361 See Albemarle Paper Co. v. Moody, 422 U.S. 405, 421-23 (1975).
362 Id. at 422-23.
363 Id.
3" See supra Section II.B. Given the wording of this provision, what is required is only for
an employer to have "intentionally engag[ed] in an unlawful employment practice," not for
such practice to have been taken "but for" protected class status. See 42 U.S.C. § 2000e-
5(g)(1). Thus, this provision covers but-for discrimination, but also extends more broadly to,
for example, policies intentionally adopted by an employer which have a disparate impact.
judges' propensity to engage in common law rulemaking in anti-

discrimination law, and the hostility that some judges have toward anti-
discrimination claims, are all likely to pose obstacles to efforts to reorient
anti-discrimination law around the but-for principle. While these attitudes
and beliefs are by no means universally held-and would pose an obstacle
to virtually any meaningful project of anti-discrimination reform-they
are important to be cognizant of in addressing a project of but-for-
centered reform.
1. Not Enough Summary Judgment

As discussed in Part III, supra, one of the benefits of a but-for focused
project of anti-discrimination reform is that it should dramatically lessen
the use of technical rules by lower court judges to dismiss anti-
discrimination law claims. 365 Currently, many discrimination cases are
dismissed-typically at summary judgment-based on technical rules
that bear scant resemblance to the factual question of whether
discrimination took place. 366 The but-for principle offers an opportunity
to contest this common practice by arguing instead that the simple factual
question of discrimination ought to control. Is there sufficient evidence
for a reasonable jury to conclude that the outcome would have been
different "but for" the plaintiff's protected class status? If so, summary
judgment must be denied.
But what is a benefit from the perspective of revitalizing anti-
discrimination law will surely be a drawback from the perspective of
some judges. Indeed, some judges have been surprisingly explicit in the
context of anti-discrimination law in articulating the view that it is
importantto have rules that allow judges to grant summary judgment with
some regularity. 367 Thus, one likely obstacle to a project focused simply
on the factual question of discrimination is that some judges will perceive
such an approach as not allowing a sufficiently high rate of summary
judgment against discrimination plaintiffs.
It is important to observe as an initial matter that this judicial concern
has no grounding in the law, and indeed is highly problematic as a matter
of neutral legal requirements. There is one summary judgment standard,
and that standard requires that summary judgment be denied wherever a
36 See supra Section I.B.

366 See supra notes 150-52.
367 See, e.g., Lewis v. City of Union City, 918 F.3d 1213, 1226 (11th Cir. 2019) (en banc).
reasonable jury could find for the plaintiff on the issue under
consideration. 368 The Supreme Court has made clear, moreover, that there
is no basis for varying the question or standards under consideration at
different procedural stages of the litigation-something that is clearly
violated in the case of the technical standards that the lower courts apply
to dismiss discrimination claims. 369 Moreover, to the extent that the view
of judges is that the summary judgment must be available in
discrimination cases in particular, this, of course, violates the
requirements of trans-substantivity that are a basic premise of the Federal
Rules of Civil Procedure. 370 Finally, there is no textual basis in Title VII
(or other anti-discrimination laws) for the summary-judgment-promoting
doctrines that the lower courts have embraced-and indeed such
doctrines are in conflict with the plain text insofar as they distract from
the core question of whether discrimination was "because
of. . . [protected class status]." 371
But even assuming that a desire to preserve the regular availability of
summary judgment was a legally legitimate basis for adopting (or
rejecting) standards of anti-discrimination law, it is far from clear that the
concerns that have animated judges in wishing to ensure the availability
of summary judgment are factually warranted. Leaving aside for the
moment distaste for anti-discrimination cases (an issue discussed at
length in Subsection V.C.3, infra), the most common justification offered
for the need for the availability of summary judgment is judicial
resources.3 72 Specifically, it is common to hear claims that judges need to
award summary judgment in a certain portion of cases because the courts
do not have the resources to try a much higher proportion of claims. 373
Thus, summary judgment might be thought of as an unfortunate but
necessary reality of the modern legal system in which the volume of cases
exceeds the judicial capacity. 374
36 See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149-50 (2000).
369 See, e.g., Comcast v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1014
(2020).
370 See generally Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507
U.S. 163, 168-69 (1993) (holding that the imposition of higher procedural standards on
particular classes of federal claims must come through amendment of the federal rules, not
judicial action).
37' 42 U.S.C. § 2000e-2(a)(1).
372 See, e.g., Thomas, supra note 175, at 177.
373 Id.
374 Id.
But this factual assumption appears to be unwarranted, or at a

minimum, overblown. Most discrimination cases that survive summary
judgment do not go to trial rather, most parties settle. 375 This reflects the
reality that there are strong incentives for the parties not to take cases to
trial, even when they can.3 76 As such, a shift to fewer awards of summary
judgment would no doubt result in some greater frequency of trials, but
not nearly to the extent that might be assumed. 377 Rather, the principal
effect of fewer awards of summary judgment would be to permit a higher
number of settlements, on more favorable terms, to discrimination
plaintiffs. 378
Moreover, whatever marginally increased trial burden that results
from a but-for approach is likely to be partially or wholly offset by
dramatically decreasedsummary judgment burdens. 379 Currently, judges
(and the parties) spend many hours addressing arguments based on the
complicated technical threads of anti-discrimination doctrine at summary
judgment. 380 As Judge Nancy Gertner has observed, where summary
judgment is granted (as it often is in discrimination cases), judges
ordinarily write an opinion justifying this decision-a task that
cumulatively consumes considerable judicial resources. 38' In contrast, as
both Justice Gorsuch and Justice Kavanaugh observed as Court of
Appeals judges, a simpler, more factually-focused approach preserves
resources, and thus benefits "courts and litigants alike." 382 Thus, while a
but-for focused approach to anti-discrimination law is likely to result in a
somewhat greater number of trials, it is also likely to preserve judicial
resources at the summary judgment stage.
"I See Berrey, Nelson & Nielsen, supra note 25, at 63.
376 There are risks to both parties of going to trial, even following the denial of a summary
judgment motion. For the plaintiff, they must face the risk of losing the case and walking away
with nothing, whereas for the defendant, they must face the risk of substantially more onerous
conditions (financial or otherwise) being imposed on them at trial (if they lose) than they might
be able to negotiate in a settlement.
377 See Thomas, supra note 175, at 177-79.
378 See Thomas, supra note 175, at 178 n.165.
379 See id. at 178.
380 Id.
381 See Nancy Gertner, Losers' Rules, 122 Yale L.J. Online 109, 113 (2012).
381 Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008); see also Walton
v. Powell, 821 F.3d 1204, 1212 (10th Cir. 2016) (critiquing the tendency to overlay complex
legal frameworks on the discrimination inquiry at summary judgment, and noting that
"summary judgment [is] supposed to be that-summary").
Finally, it is important to note that not all judges share the perspective
that the inquiry at summary judgment in discrimination cases ought to be
technically oriented and promote the availability of summary judgment
awards. For example, as then-Judge Gorsuch put it in rejecting the
application of technical rules to First Amendment retaliation claims (in
favor of a straightforward factual approach):
[T]oday motions practice, and especially summary judgment
motions practice, seems to have assumed a place near the center of the
legal universe: almost no one makes it to trial anymore. With that
development surely comes a strong temptation to anoint summary
judgment with unique significance and adorn it with special rules and
procedures. But the truth is summary judgment was supposed to be
that-summary. Not a maddening maze. Not a paper blizzard. Not a
replacement for the trial as the preferred means for resolving
disputes.3 83
Ultimately, while judicial perception of the need for rules that would
permit summary judgment in discrimination cases is a real obstacle, it
would stand as an obstacle to any project of anti-discrimination reform.
But strong, indeed overwhelming, legal arguments exist for opposing
such a view-and even from a pure policy perspective, it is far from clear
that reducing awards of summary judgment in discrimination cases would
pose a challenge for judicial resources.
2. Rule Creep
A second likely judicial obstacle to a project of recentering anti-
discrimination law around the but-for principle is what I refer to as "rule
creep." As observed in Part III, supra, some circuits (including most
notably the U.S. Court of Appeals for the Seventh Circuit) have already
in theory adopted a simple, factually focused approach to anti-
discrimination claims. 384 But a review of recent cases reveals that in many
instances this has not stopped judges from reattaching technical rules to
the new, ostensibly straightforward, factual inquiry. 385 This "rule creep"
could pose a genuine risk to a project of but-for focused reform, insofar
383 Walton, 821 F.3d at 1212.

384 See, e.g., Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016); Smith v.
Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).
385 See, e.g., Khowaja v. Sessions, 893 F.3d 1010, 1014-16 (7th Cir. 2018); EI-Saba v. Univ.
of S. Ala., 738 F. App'x 640, 646-48 (11th Cir. 2018).
as it may render ineffectual even decisions situating the but-for principle

as the central anti-discrimination law inquiry.
The reasons for this "rule creep" are no doubt varied, and likely include
both the considerations described supra (perceived need for elevated
levels of summary judgment) and infra (judicial disfavor for anti-
discrimination law claims). 386 But in addition to those two motivators, it
appears that judges are simply most comfortable with the use of common
law rules in the anti-discrimination law context. Thus, judges appear to
be uncomfortable with undertaking an inquiry unguided by technical
rules, and simply stating their view of whether a reasonable jury-based
on all the facts and circumstances-could or could not fmd
discrimination. 387 In part, perhaps because of habit-and the long practice
of evaluating anti-discrimination claims via technical paradigms-judges
appear eager, even where instructed otherwise, to apply technical
precedents to "resolve" the claim, rather than taking ownership over their
own factual judgment. 388
To some extent, this attraction to technical rules may reflect genuine
concerns that a factually-focused inquiry will not lead to determinate
results. Indeed, there is ample research suggesting that people of different
backgrounds and beliefs do perceive discrimination differently based on
the very same facts. 389 Thus, there can be no doubt that different judges
may reach different outcomes-even when presented with the very same
evidence-about whether a reasonable jury could conclude that
discrimination, as a factual matter, took place. 390 Thus, one might imagine
that technical rules could serve an important protective purpose for
plaintiffs--ensuringthat cases would survive summary judgment where
they meet certain technical requirements, regardless of whether a judge
believes discrimination took place.
But while this may have been the premise on which some of the
existing technical rules were adopted, today those technical rules operate
overwhelmingly to disfavor plaintiffs, offering judges the opportunity to
386 See supra Subsection V.C.1 (addressing the perception among some judges that there is
a need for doctrine that will allow elevated levels of summary judgment) and infra Subsection
V.C.3 (discussing general judicial disfavor for anti-discrimination law claims).
387 1 have had adjudicators of discrimination cases express this view to me in informal
conversations about this project and prior work on the McDonnell Douglas paradigm.
388 See sources cited supra notes 385-87 and accompanying text.
389 See, e.g., Russell K. Robinson, Perceptual Segregation, 108 Colum. L. Rev. 1093, 1106-
39 (2008).
391 See id. at 1106-39, 1155-56, 1164-66.
justify awarding summary judgment, but not denying it. 391 Indeed, the
only arguably "technical" rule that meaningfully benefits anti-
discrimination plaintiffs today-the "pretext" rule-is a rule that the
Supreme Court has made clear is not "technical" at all, but rather simply
arises from the straightforward factual inferences that are permissible
where a litigant is not truthful. 392 (So, just as in other areas of the law, if
a defendant lies in the discrimination context, this can allow a jury to infer
guilt). 3 93 As such, the notion that anti-discrimination law's technical rules
allow for more neutral adjudication-as opposed to biasing the courts in
favor of discrimination defendants-is simply unsupportable in the
current legal landscape.
As such, for judges who are concerned about the potential for bias
when assessing anti-discrimination law cases untethered to technical
rules, it is important to emphasize that technical rules do not effectuate
this purpose-but that faithful adherence to the summary judgment
standards can. 394 At summary judgment, of course, the judge is supposed
to draw all inferences in favor of the non-moving party (typically the
plaintiff), and to ask only whether any reasonable jury could find in their
favor. 395 Thus, contrary to the current technical rules (which often as a
matter of law draw inferences againstplaintiffs), the judge should think
through what is the "best case" scenario for what this evidence could
mean-even if the judge does not agree. 3 96 Taking seriously these
summary judgment standards-something too few judges do today-
would better serve the principles of neutrality and anti-bias than the
current technical architecture of anti-discrimination law.
Finally, it is important to note that whatever the causes of "rule
creep"-disfavor of anti-discrimination claims, or legitimate concerns
about judicial biases-the strategic advocacy responses to "rule creep"
should generally be the same. Just as laid out in Part III and Section V.B,
supra, the project of resolving the theoretical crisis in anti-discrimination
law will be an iterative one, and preventing "rule creep" is just one
example of the need for this type of consistent advocacy. An opinion
stating that the but-for standard is the central inquiry-and that technical
391 See Eyer, supra note 2, at 976-78.

392 See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000).
3 Id.
34 See Sperino, supra note 155, at 56-67 (making this observation).
39 Id. at 57.
396 Id. at 65-67.
rules ought not be applied-is simply the beginning, not the end point of
advocacy efforts to address the current crisis in anti-discrimination law.
Rather, consistent advocacy and messaging that the inquiry must be a
simple and factual one-and a willingness to eschew technical arguments
even where they may appear to benefit plaintiffs-will be critical to
ensuring that "rule creep" does not quietly reinstate problematic technical
legal standards.
3. JudicialDisfavorfor Anti-DiscriminationLaw Claims

The final judicial obstacle to addressing the current crisis in anti-
discrimination law is negative judicial attitudes about anti-discrimination
law claims. As others have written, it is an open secret that some judges
view anti-discrimination claims (especially employment discrimination
claims) as overwhelmingly likely to be non-meritorious. 397 This of course
has the potential to disrupt efforts to re-center anti-discrimination law
around its core factual premises, as it may lead judges to believe that more
summary judgment-promoting rules are required. It may also lead
individual judges to misapply factually-focused standards, by awarding
summary judgment even where a reasonable jury could find for a plaintiff.
As set out below, this is a real concern for all reforms of anti-
discrimination law-and not one this project can hope to fully address-
but there are some steps that can and should be taken to mitigate its
impacts.
As an initial matter, as described above, both anti-discrimination law
and summary judgment law offer strong legal responses to the view that
anti-plaintiff judicial attitudes can legitimately serve as a basis for
demanding more technical summary judgment rules, or granting
summary judgment where a "reasonable jury" could find otherwise. The
technical standards that the courts have engrafted on the discrimination
inquiry typically lack any statutory basis in anti-discrimination law-and
indeed typically disrupt the textually-mandated inquiry that anti-
discrimination law suggests. 398 Moreover, taken seriously, summary
judgment standards would require judges to recognize and set aside biases
about the presumptive non-meritoriousness of discrimination claims-
instead, addressing each case on its own facts, drawing all inferences in
397 See, e.g., Lee Reeves, Pragmatism Over Politics: Recent Trends in Lower Court
Employment Discrimination Jurisprudence, 73 Mo. L. Rev. 481, 519-21 (2008).
favor of the non-movant, and asking what a reasonable jury could

conclude. 399
Of course, these are the summary judgment standards that apply today,
and they have done little to moderate judicial enthusiasm for awarding
summary judgment to discrimination defendants. But it is also important
to note that the use of summary judgment in anti-discrimination law has
arisen against a backdrop in which plaintiffs themselves have treated most
technical rules as legitimate and dispositive, rather than pushing for a
factually-focused approach. 400 It is not clear how judges would respond
to strong and consistent arguments by plaintiffs for a factually-focused
standard with meaningful application of the summary judgment
standards. At a minimum, it seems possible that such arguments-as they
are taken on board by individual, perhaps sympathetic judges-might
help effectuate a shift in judicial culture, away from the perceived
legitimacy of widespread grants of summary judgment based on technical
rules.
Efforts to more directly address the sources ofjudicial bias against anti-
discrimination claims may also be important. Whether in judicial
trainings or in the context of individual cases, it is important for judges to
be exposed to social science evidence on the continued prevalence of
discrimination against a variety of protected groups. 40 ' As research has
shown, understandings of the prevalence of discrimination is an important
causal factor in whether discrimination is perceived in an individual
case. 4 02 So too, an understanding of the historical roots of many
contemporary discriminatory stereotypes and practices may be useful in
allowing judges to "see" discrimination in individual cases. 403
In addition, efforts to ensure that potentially meritorious anti-
discrimination cases receive counsel, and that non-meritorious cases are
not brought, are also potentially important to addressing judicial biases.
While most anti-discrimination lawyers do carefully screen cases, some
lawyers will file claims of questionable meritoriousness for their small
dollar settlement value. 4 04 To the extent that professional networks can be

400 See Eyer, supra note 2, at 1008 n.250.
401 See, e.g., Joseph A. Seiner, The Discrimination Presumption, 94 Notre Dame L. Rev.
1115, 1127-46 (2019) (collecting studies).

404 This observation is based on my own observations during my time as an anti-
discrimination lawyer of the community of lawyers of which I was a part.
brought to bear to discourage this practice, it would benefit all anti-

discrimination litigants. And efforts to increase the availability of
appointed attorneys-and to ensure payment sources for those
attorneys-would help to ensure that potentially meritorious claims are
adequately litigated. Contrary to the assumptions of some oversimplified
economic models, currently there are strong financial disincentives for
attorneys to take the claims of many working class or low-income
plaintiffs-and other barriers (including racial biases) may result in even
meritorious claims being forced to file pro se. 40 5 Because pro se plaintiffs
can rarely adequately litigate their own claims, the relative prevalence of
pro se discrimination plaintiffs no doubt contributes to judicial
perceptions of this category of claims as non-meritorious. 06
Finally, it is important to observe that the issue of judicial biases
against anti-discrimination claims is one that is not unique to the project
of resolving the conceptual crisis in disparate treatment law. Rather,
judicial biases against anti-discrimination claims would impact any
project aimed at reforming anti-discrimination law. Thus, while it is
important to be cognizant of such biases, and to address them to the extent
possible, they are surely not a reason for inaction.
CONCLUSION
Millions of Americans believe that if they are treated differently based

on their race, their sex, their religion, their disability, their LGBTQ status,
their age, or their national origin, the law affords them a remedy. But for
those who experience discrimination today, it is far from clear that this
belief will be honored. The theoretical crisis in anti-discrimination law
means that it remains uncertain whether a true disparate treatment
principle governs anti-discrimination law in the first instance. And most
courts do not even try to ask this important factual question, instead
relying on technical doctrines to dismiss claims.
Today, we have a rare opportunity to return anti-discrimination law to
what should be it its core principles: the idea that no person ought to be
405 See, e.g., Berrey, Nelson & Nielsen, supra note 25, at 115-19, 121-25.
406 See, e.g., Spencer G. Park, Note, Providing Equal Access to Equal Justice: A Statistical
Study of Non-Prisoner Pro Se Litigation in the United States District Court for the Northern
District of California in San Francisco, 48 Hastings L.J. 821, 823 (1997) (finding that "civil
rights" claims, including discrimination claims, were the largest substantive category of non-
prisoner pro se filings); see also Berrey, Nelson & Nielsen, supra note 25, at 68 (describing
the dramatically lower success rates that pro se discrimination litigants experience).
treated differently based on their race, sex, or other protected class status.
The Supreme Court has held that a true disparate treatment principle-
the but-for principle-resides at the core of anti-discrimination law.
Moreover, it has made clear that this principle controls as a matter of anti-
discrimination law's plain text. This set of holdings affords myriad
opportunities to argue-in both the statutory and constitutional
contexts-that all disparate treatment must be proscribed.
While this objective may seem modest, in today's legal landscape it is
not. If all disparate treatment is proscribed, then it is illegitimate for courts
to dismiss cases based on technical legal barriers like the McDonnell
Douglas paradigm, the "same actor" rule, or rigid comparator
requirements. If all disparate treatment is proscribed, then the courts
ought not demand individualized evidence of self-aware intent to
discriminate (though such evidence may certainly still be useful to show
disparate treatment). If all disparate treatment is proscribed, then
doctrines that routinely immunize certain actors from being held
responsible for their discriminatory acts should be found illegitimate.
The but-for principle thus offers innumerable opportunities to
challenge the anti-plaintiff structures of anti-discrimination law today.
Simply by insisting that our commitment to prohibiting disparate
treatment must be honored, we can dismantle the biased architecture of
modem anti-discrimination law. But this important opportunity is not
self-executing: it will take a movement for "but for" to see its full effects.
Thus, whether anti-discrimination advocates and scholars embrace the
but-for principle-or fail to do so-may determine the future of anti-
discrimination law.

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Discrimination law has long been in theoretical crisis. Its central

approach comports with our often-stated commitment that all

constitutional and statutory law, convoluted doctrines result in the

text. 6 As such, they offer an unusual opportunity to argue that a true

6Bostock, 140 S. Ct. at 1743, 1750.

have been assumed to be uncommitted to work-and thus denied a

promise.1 6 Similarly, the theory of "negligent discrimination"-long

those affected. When I refer to "intentional discrimination," I mean to

I. THE THEORETICAL CRISIS IN ANTI-DISCRIMINATION LAW

23 Though there may be some theoretical possibility of distinguishing between "intent,"

Nielsen, Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality 57

(describing disparate treatment as the most "easily understood type of discrimination").

disparate treatment as necessarily conscious and volitional. 29 Thus,

38 See sources cited supra notes 29-31 and accompanying text.

most compelling evidence of discrimination-explicitly biased comments

So too in the constitutional law context, technical doctrines abound that

Ultimately, without a core defining principle to unify critiques of its

whether a different application of the particular technical doctrine is

II. RESOLVING THE THEORETICAL CRISIS: THE BUT-FOR PRINCIPLE

A. The Origins of the But-ForPrinciple

and Power v. Manhart.80 In Manhart, the question was whether an

anti-discrimination law, believing it to be easier for anti-discrimination

84 557 U.S. 167, 175-80 (2009).

the 'default' or 'background' rule against which Congress is normally

B. The Potentialof the But-ForPrinciple

statutory anti-discrimination law's provisions, and indeed as representing

that a true "disparate treatment" standard, the but-for principle, be

97 See sources cited supra note 94.

is covered by Title VII), in many ways it is emblematic of the potential of

employees (i.e., to engage in "discrimination" in the literal sense of

"but for" Libby's partisan status, membership causation is external, and

to such a project. Movement building and public messaging matter. To

C. Extending the But-ForPrincipleto ConstitutionalLaw

"8 See, e.g., Eyer, supra note 2, at 1016.

The Supreme Court's recent opinion in Comcast, embracing the but-

Thus, recent cases centering the but-for principle offer a unique

III. THE RADICAL POTENTIAL OF ASKING THE FACTUAL QUESTION OF

A. The But-For Principlein the Individual Case

133 U.S. Const. amend. XIV, § 1.

141 Id. at 10.

may be relatively few discrimination cases in which we can confidently

judgment stage, whether a reasonable jury could so conclude, drawing all

B. Revolutionizing Anti-DiscriminationLaw Through "But For"

173 Indeed, the statements of Wallace's immediate supervisor alone-indicating that

Thus, although the but-for principle (and its associated mandate to

85 See supra Part II.

opinions-Comcast and Bostock-that wholeheartedly endorsed the but-

Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739-40 (2020).

In sum, a but-for approach-centering the simple factual question of