this case that a plaintiff may succeed on a section one thousand nine hundred and one claim merely by showing that race was a factor that was consider in the defendant's decision making even if the decision would have me heated and was made for entirely appropriate business discrimination cases no will advise plink that would ever sue under title seven in any employment is counsel it i wonder if the distinction you're fighting over his is someone academic in the contract negotiation process for example you know there may be several steps along the way and if it one of those steps there's clear racial and excuse me animist evident and then you know the process continues on at the end of the day the contract is denied it may be hard to prove but for causation on the other hand it's also hard to ignore the part of the step in which there was clearly evident racial animus and it may be a reasonable argument or to be allegation that that animus continued through even though manifested at one stage of the process what complaints are different mr chief justice and i don't rule out you know the possibility that a complaint male lead to such an expression of animus that he could actually imply that the enemy has continued until the passes pleading standards on their any standard as we've made clear it but of course you know it is also the case that we have cases like girls and napster in which it is evident from the record that something to do with of the protect factor was made in the employment context and at the end you know the jury still had to be instructed that he had to determine whether that was a determinative factor in the decision making  and in all of these cases you know the court has already determined that the that the fact finder will have to make the decision as gross said whether that factor not only played a role but also had as just thomas put it in grows permanent the effect in the decision maker mr estrada you said that the respondents here continue to say that they don't have to prove but for causation i'm a little bit confused about that point and i guess this is for mr chairman skeet to think about as well but in your reply brief you make the good point that on page forty seven or forty nine of the respondents brief they seem to say the opposite they seem to suggest by quoting that rd circuit case ask is that in fact they are going to have to prove but for causation at the end and the question here is really what they have to allege now i think and if if if if we take it that way i mean mr chairman ski can say what he wants to say about that but let's just assume that that's true that they are going to have to plead but weight that they're going to have to prove but for causation at the end that is the ultimate standard in the case but this is a complaint and you know it's three discovery and the plaintiff is not going to know what the defendant was thinking about in making whatever contract decisions the defendant was making and and and so what do you think the plaintiff has to allege at the beginning why you think you know i have to do that i  think st then i'm circus ruling in this case had nothing to say about the difference between pleading and the merits in fact the th circuit work from what was needed to be along the merits to then upholding the complaint  o i take that point and i would think that if if my assumption holds which is that the respondents do have to prove this at the end then you would have to say that the th circuit is wrong but you would still have the question of whether the complaint is sufficient yes now the nd point that we're going to get to make is the whole question of whether there may be burden shifting has been introduced on what poilievre the respondent we don't actually know what their position is on that but i understand what they're trying to say based on the cascades that is may be that but for sort of applies in this sense that the burden of showing but for the season has shifted to us so that it in this sense what actually is happening is that they are arguing for the price waterhouse framework without daring to name its name here so there could be saying that and i guess this is another thing for mr chairman school to be thinking about and they could be saying that that this is essentially an attempt to shift the burden of but for onto you but they don't have to be saying that excuse me mr estrada they don't have to be saying that they could be saying no we really do believe that in the end we're going to have to prove but for position but because we're pretty discovery because we can't really i mean you don't want people throwing around baseless allegations and their complaint that that a complaint should be found sufficient even if it doesn't allege but for causation you know it's enough to say they made a racist remark and they gave and they gave contracts to lots of white firms that weren't as good as our firm and that's enough that yes the now the the the answer to you know the bottom line answer to i think the theory is that underlies all of your questions is that the answer to your question is actually controlled by rule eight ball and is actually very clear for a while especially which was seems quite right but we had this case before it calmly which is in the title seven context i'm not sure how to pronounce that's where quits or something so remind us which which which twamley said we're thinking about that case  that case is still good law and what and what when that case said this was actually a mcdonnell douglas shifting case with the prime if they should case and sort through it said you don't actually have to in not required to to plead that in all cases mcdonnell douglas for example does not even apply if you have direct evidence of discrimination is a way to prove your case circumstantially so it doesn't make sense to impose on  not sure i go back to the chief justice's initial point which is if i come forward and show that race was a motivating factor  also be the but for until a defendant is disposed and discovery is held then that becomes an issue for the trier of fact of whether or not the motivating factor was a but for cause so i think as long as you have enough in your complaint to show racial animus and a reasonable inference can be drawn that that's a but for cause i think a plaintiff has done more than enough which you seem to be suggesting is that they're required to anticipate every potentially independent reason you may have had we find but for course ation correct but i will point out that if you find but for causation you would then have to examine that under the requirements of all that require not us the th circuit somebody it would be all due respect you know as many worthy efforts have been made in this case to blueline the complaint in this case for the edification of the court i mean it is worth reading because there are any number of allegations in the complain  is there a dispute about that issue before us or is the only question before us whether enough facts were played under twelve b six and falling twamley which is what this seems to have devolved into when there's therefore not the big issue that has been portrayed what i think they were for they were further have to agree that what they mean is but for caesar and they bear the because under the in and price waterhouse you know the burden of persuasion even if it is but for shifts to the defense right but it's but for by a preponderance it's a question of who has the rack but i think what's really going on is that the respondents are really now that is also equally wrong for any number of different reasons yeah well i don't know why they don't answer he did what he did here and i don't know why the response of argued the case the way they did here but if if you look at the re facts on pages three to five of the respondents brief could you say that those are insufficient to raise and if pled those would be insufficient to raise  satisfy the pleading standard even if certain of persuasion is but for causation cast hold and entertainment studios it's channels are good nuff needed to get support in the field it turned out that according to that didn't matter whether they got support in the field and so forth or a recitation of facts yes we do say that's enough and we have a number of reasons for that so what they say is actually not in the complaint that has not been in the last a complaint that's been won so what they say about you know the demand for their services is something that they were able to alleged in their rd and last complaint you know all of the notion about burden shifting to argue that at the pleading stage motivating factor a motivating factor can be enough that might have been true under pricewaterhouse burden shifting but pricewaterhouse no longer controls so for the  time respondents turned to mcdonnell douglas burton shifting instead but mcdonnell douglas even if it applies in this context is not relevant to the causation question it shifts only the burden of production at trial so it can't affect the elements that a plaintiff needs to prove or that a plaintiff needs to plead and the work of its decision that because this kagan pointed to underscores that it says that there is no different and alice says i'm done or what was then the ok but i'm looking at the statute and i don't see any of the but for language because for any of the other that we have interpreted in any other statute what i see is a statute that says all citizens must the same right and if you talking about in the making performance execution of the contract and we've also said the civil rights law was designed to eliminate all race discrimination i'm not sure how we can square those two things with a but for how can it be that if you're treated differently because of your race in the formation of the contract but you're genine the contract for another reason that other people may have been denied for put you were treated differently more burdens were put on you more expenses were put on you and at the end they say you know we really would never take on anyone like you with your business because and it's true nobody with your business plan you asked an ordinary english speaker whether someone who would never have been granted that contract regardless of her raise whether that person was denied the same right to make that contract i think people would say no except that the dictionary says definition of making is just quote the process of being made so it's the process it's not just the entry into the contract there are different words in the statute so i'm happy to address the making point but let me just but  go i want to go back to the broader point which is how can you say that your have the same right and that we're eliminating all vestiges of discrimination if we are not using the motivating factor but are using a book for slander just to sort of my out there's a lot baked in there i think to the extent you think there is some ambiguity in the same right language the next place to look is a very congress had an enforcement mechanism section two and that does use classic but for language so i think that's a good indication of the substantive scope and true enough one hundred years later this court and for a private right of action but i don't think that can question is i don't understand if we're talking about pleadings what's the difference i mean you know they have some other words and the evidence is on information and believe we think that the defendant here used  race improperly denies the contract then the list and who cares whether they say it was a motivating factor or whether they say it was about four i can understand it making a difference later when you decide who has the burden of proof because at that point you know the defendant maybe should have the whole burden of proof after all he knows what's going on in his mind in the plaintiff's doesn't and or maybe you should say you split it production versus but we're not apparently arguing about that we're just arguing about the complaint and sure let me give you a hypothetical this is sort of a silly one but instead of thinking of but for in sort of a formal legal way think of it as did race possibly make a difference someone applies to be an associate of the law firm and they get a letter back where they think there's some sort of racial language in there and the letter also says and also we're not hiring you because you never went to law school and if that person files a complaint complaining about the racial aspect of that denial i don't think any court would say that there was any possible way that that person was going to be hired as a difference and you see that in the court of appeals decision is the idea that race could have been some sort of consideration but a consideration that had no alternate effect on the well if it's a consideration it's true it wouldn't be a consideration where the applicant was a white person indeed it couldn't be and if the applicant is a black person it could be so this says that she says you should treat a white person and a black person alike and so i mean that's the reason if it really does make a difference he could and that separate question the statute does not say everybody has to be treated alike for all purposes it says that everybody regardless of race has the same right to enter a contract and we certainly agree that any consideration of ra rare cases if they exist at all where the complaint goes out of this way to refute itself i think that is very true and i think there are certain circumstances and we don't have a position on whether this case is one of them where someone could go out of their way to say what the potential arguments of the defendant are but where the rubber is going to meet the road in a lot of these cases is going to be a summary judgment so we think it's important that the court agree in this case that we should vacate therefore and remain and not resolve the issue here we don't have a position on whether this particular complaint satisfies family and it all we don't think the courts ordinary practice would be to go on and resolve that question is there anything for of you agree it's unusual with a complaint with paragraph after paragraph of validation like this to toss at the twelve the sixty age you know i don't want to get into th don't have a view on it i think oftentimes additional allegations could be things that cast doubt on the plausibility of some other allegations it's possible that that was what was in the general what would be a complaint has to do in order to survive a twelve in this area a complaint has to do exactly the same things that a complaint needs to do under the age act under the a p a under title seven of retaliation claims this isn't a new innovation it's just plead enough to think that race made a cases at least in the employment context we think it's an open question whether it would apply beyond the employment context and we address that issue i don't think so for purposes of this case we'd be willing to assume that it applies here it just change the standard it shifts only the order of introducing evidence at trial so what happened in fact on the ultimate standard thank you counsel good morning mr chief justice in may please the court statutory language matters for federal civil rights statutes use the words because of or based on this court is inferred a requirement for but for consideration but this court has never create a requirement for but for consideration in the absence of language section one thousand and one uses no such words it's crucial to remember the procedural posture of this case it is on a motion to dismiss all the th circuit held w but the relationship between motivating factor but for causation and burden shifting with this court is adopted a motivating factor standard it's then adopted a burden shifting framework that's true in constitutional cases it's true to go to my healthy consequences of violation does use causal language such as by reason of in cause to be subjected section one does not use such language at the end of the day what is the burden of persuasion in this case in a case like this your honor this court has never reached that question and it's not presented here on the pleadings ultimately the question would be does the burden of persuasion shift it's under section seven  in paterson was mclean or the mcdonnell douglas burton shifting framework does indicate that the burden of persuasion in the end would rest with the plaintiff but but the burden of persuasion as to what issue the burden of persuasion in terms of showing that the i do think there's an issue down the road that could be faced is that the very end who has the burden of persuasion here i think patterson for some of you know said i thought to justice kagan that the point of what i have the burden of persuasion at the end of showing but for causation that i missed here that no you didn't honor what i was saying was by in patterson person mean this court adopting the mcdonnell douglas burton shifting framework mcdonnell douglas shifts the burden of production but never shifts the burden of persuasion and so in that sense that's why you said patterson versus mclean seems to answer the question so all you're arguing i think is if you plead motivating factor that that's enough to looking so what do you do with the extreme example that the assistant solicitor general raised you know you're black but then you're not a lawyer we don't hire non lawyers and you don't allege in the complaint that you're a lawyer or that you graduated from law school or whatever what happens in that i assume that instance there's not sufficient allegations even  sufficient to survive a motion to dismiss we would say yes because this race is a motivating factor the organ the other side is because it doesn't allege but for causation that wouldn't be enough and that shows why but for causation this in an appropriate effect often under your view at the pleading stage it would say well based on whatever the racial an indication is in the letter but that may have been a motivating factor if the complaint alleges that race is a motivating factor even if it also even if it is in the hypothetical the person is not a lawyer the reason i answer just to sort of be that way is it has to be plausible that the plaintiff can recover if an element of the cause of the action is not present then it's not please just as you know i was just going to say even though a white person would not have had that discriminatory you know it's been denied equal or not treated the same which is your theory but they're treated differently on the a kind of race because one it was the subject of a racial we discriminatory conduct comment and the other was you're right your honor as your spelling out the hypothetical i would say if the complaint is plausible that race was a motivating factor that should be enough to withstand the motion to dismiss as the but for test i mean you know if he hadn't been blocked we would do well but you know i mean why on those same facts can't you put your bottom line and therefore but for the racial discrimination was a different go back to the hypothetical difference between motivating factor in but for that there's an enormous difference which is why this is what has so often said motivating factor let me go back to the hypothetical that i gave to the no that's not the position that at least is being explored by justice prior it's just that it has to be plausible that it caused the injury and isn't a hypothetical you've given us meet that standard ege finding information and believe that he thinks that this racial part of it was motivating and and now call that motivating or call it but for that he has to believe that and then we go on to what's actually difficult i think is the burden shifting suppose we said something like well you know yes i mean i think that if the answer is this complaint goes forward either way and the  unusual for us to say that the test for the pleading stage is motivating factor but the test at the trial or at summary judgment is but for if you have a clean no your honor then i want to win that be a little unusual because this court in so many contexts is ultimately set but who are not what the pleading state when they don't know we pricewaterhouse it's motivating factor throughout we haven't made some special exception for pleading stage and mcdonnell douglas which you different legal standards at different stages of the same case no your honor take constitutional cases like not healthy for says to oil and philip of arlington heights all that's required at the pleading stage is motivating alleges this was not the but for cause of the adverse action against me but it was a motivating factor would that be sufficient to go forward yes i understand you hypothetical all that should be required at the pleading stage is motivating to even if even if it concedes even if the plaintiff concedes in the complaint that it wasn't about for cause and even if but for cause is the standard at the end of the day the case should be permitted to go forward toward its inevitable doom but you're out of the whole point of the burden shifting framework is to be able to establish what was the actual cause the problem is a go back to discourses question is it's not realistic to say that the plaintiff that you have to allege that this was the but for cause and deny all other causes it that's not always right but that seems very different from saying you have to allege a motivating cause i mean it's true that you cannot expect the plaintiff to negate everything else that might be in the defendant's mind this is pretty discovery the plaintiff isn't going to know everything else that could have been in the defendant's mind but as long as the plaintiff comes forward with sufficient allegations to say given what i know you know this defendant made a racist remark this defendant gave contracts to white firms that were not as qualified as our contract work why do you have to label that anything why do you just have to say those are the kinds of facts that at this stage of the litigation allowed the complaint to go forward i think they should be just as kagan as i said to justice prior earlier i think all we're saying is that those allegations should be sufficient  which seems to say something very different that says even if racial animus was not the but for cause of a defendant's refusal to contract a plaintiff can still prevail prevail not like satisfy the pleading standard prevail if she demonstrate discriminatory intent was a factor in that decision so i mean that seems wrong right but it wasn't the issue before the th circuit the issue before the th circuit was soley about the pleading and here i direct you to the language i refer to have an answer we just a question for you proceed on the page whatever it is sure i just i would be grateful to know doesn't don't you agree that the th circuit was wrong cases the point of has the ultimate burden of persuasion to prove that race was a vote for cause of the decision we vacated remain for the th circuit to analyze the complaint what is wrong with that because it's not the issue before this court your honor well isn't it the issue given what justice kagan just read from the th circuit's decision which influenced how the th circuit assessed the complaint if we articulate the right standard and then vacate for them to analyze the complaint under the right standard would not be the the better way to go but the right standard for the complaint is to allege that race was a motivating factor whatever is the conclusion with regard ultimately as the burden of persuasion doesn't change the pleading stage and that's why i keep going back to what the th circuit actually held on page two and we wouldn't be setting the can we won't be saying anything about the pleading stage under the hypothetical pinion the issues not before it could say at the pleading stage motivating factor sufficient patterson versus mclean says the mcdonnell douglas breeding burden shifting applies it shifts the burden of production but not the burden of persuasion and i think that would deal with all of the issues that we're talking about here is you're not sure look at least i've got in my head what god don't go further of i don't have it right smith says this man wouldn't contract with me i know him he is the most bigoted person in this state and as normal he said all kinds of racist things and jumped up and down and so forth and by the way he's my  cousin and he hates me and i've never met anybody who hated me so much and i think for both reasons he would have never entered into this contract now there we have to sufficient causus in the absence of the auger and do you win under this statute or do you not because the reason they put it in the pleading stage is if you what you allege i don't know that every has been a complaint like this but if there were if you don't win then why do you let you go further if you can't when you want to because this court has said we don't want to determine at the feeding the stage what was the actual is or is not before us it seems to me that your focus is on the availability of the burden shifting mechanism right yes people that's not in the question presented either that's correct your honor i think the only reason that i go to the burden shifting describe completing standards on the basis of mcdonnell douglas or pricewaterhouse which were trial burdens or summary judgment burdens why isn't simple enough to say you from the allegation it's a reasonable conclusion that race was a was was the but was the reason for the denial of a contract exactly your honor that's all you need  and i don't disagree with you pretensions that in most circumstances you prove or you prove a motivating factor that will be enough that's what i think by two colleagues have been saying and i think there's a way to say something is the worst thing we could do conservation your honor because we live in a world of multiple causes and we believe that all that's required by the plain language of the statute or by congress is broad remedial intent is that race be a motivating factor we do actually allege but the specific paragraphs the complaint support that so we do have a section are brief that we meet the requirement for but for causation but i think when you focus on the statutory language and you focus on congress's broad remedial purpose it did not mean to impose a requirement for but for causation but the pleading with the prime official case stage either it just strikes strikes me as confusing to throw in a different causal standard for the pleading stage as opposed to the ultimate stage as opposed to saying look at the pleading stage we understand that not everybody is going to know everything so we're going to not require too much in the way of of of of proof i mean you're suggesting that but for cause is sole cause but for cause has never been sole cause there can be three but four causes in a case you know if you take away each of these three things the outcome would have been different but motivating factor is something different motivating factor you can take out and the outcome would still be the same and it just seems quite confusing to me to put in something that's not the same question as the ultimate question at the pleading stage rather than to understand the and there before discovery and nobody can be expected to know what the defendant is going to say i disagree just as kagan this court has repeatedly adopted a motivating standard feeding approach even though in the and it's a bu true with regard to title seven as well the motivating factor standard at the feeding stage i think to require but for causation the pleading state we often insurmountable burden that that was justice o'connor's point pricewaterhouse a but for  i'm sorry these cases as you know or are not usually thrown out at the motion dismissed stage and usually you have the ultimate legal test in mind and you just look at the facts all wedged in the complaint to see as just were rightly said whether there's a way you could plausibly live for from those facts that it would ultimately meet the test for ninety one or for discrimination and this is a helpful question for you isn't isn't that just how it usually works yes yeah yeah in other words we shouldn't get in or why should we get it i guess i'm picking up on justice kagan's now you here's the legal test from one thousand nine hundred and one go look at the facts alleged in the complaint the facts and just see whether they would meet the standard it's pretty rare at least in my years of working it discrimination points is pretty rare to throw one out of the motion to dismiss stage you know how long as it passes you know a pretty low bar in that's exactly right and that's what the th circuit did if you read the opinion in this case the th circuit says in the bottom of page two i that the only question and before us is the pleadings and it says that the standard is motivating factor pleading that's not a problem and i'm repeating myself but the problem is that they were assessing that are you boy as justice kagan pointed out with the wrong test in mind had the right test in mind that still might well be a complaint to go forward but that was the question presented in the circuit but i think all this court needs to say then is that the th circuit is correct in saying that the pleading stage motivating factor is sufficient and perhaps you want to remain and to assess whether or not they apply the standard and i think again if you up each three of the opinion in this case that's exactly what they did was say this plausible allegations here that race was a motivating factor but you told me that we don't even have to do that because you say that you did plead for cause yes we did  causation but we do not believe that it's a requirement we believe that the pleading stage all that's necessary is motivating factor well that sounds like an advisory opinion from me saying well you know they're not arguing that but for cause is required but the legs did anyway but we're supposed to forget about that in a and instead address this very slippery question which isn't even presented under your argument today i agree with that i think the only question presented is about the pleading stage it's quite notable that there was a nd question the circuit titian that this court did not grant cert on and that was the question of whether or not the plaintiff has the burden of negating all other explanations at the pleading stage i think that shows why we're here today and what we're arguing about they don't create eighty white owned channels that all of the channels that are carried by the other cable companies are carried by comcast except for mr allen's channels all of this is least enough to allege that race is a motivating factor but also enough to allege that the endo believes c p l additional urban league and the other individuals were in on the conspiracy to run it that is not in the nd amended complaint and the only thing that was before the district court in the matter with this court is the nd amended complaint which you are referring to here is not properly before the district court and not properly before this court in conclusion ultimately this case comes down to two different which is the nd amended complaint which is the current complaint that issue where the current complaint continues to allege that white owned media and comcast in particular works hand and glove with the federal government to execute this racist conspiracy i would  magic johnson and the home which apparently are some sort of artists and it claims that these african american entertainers are truly signed up with comcast to give us cover for a racial discrimination now the period covered by the the allegations are listed in those pages you know the thing that i wanted to make clear with respect to the settlement and that i was making clear with respect to the time period covered by the complaint which is two thousand and eight to ferry tw is that the carriage by the t and t and direc t v which are probably the largest in the country twenty five million or so is post date the events in the complaint and so that the allegations in the current operat