U.S. Supreme Court Establishes Claimants Must Establish “But For” Causation in Section 1981 Race Discrimination Claims

Comcast Corp. v. National Association of African American-Owned Media - United States Supreme Court

Facts:  Entertainment Studios Network (“ESN”) is an African American owned television network operator.  ESN wanted to have its channels carried by Comcast Corporation (“Comcast”), however Comcast refused to do so.  Comcast based its reasoning on a claim that there was a lack of programming demand, bandwidth constraints, and a preference among its customers for programming that was not offered by ESN.

ESN and the National Association of African American-Owned Media sued Comcast on the grounds that Comcast had violated 42 U.S.C. Section 1981 of the Civil Rights Act.  (This portion of the Civil Rights Act guarantees “[a]ll persons...the same right...to make and enforce contracts...as is enjoyed by white citizens.”  Comcast moved to dismiss the case on the grounds that the claimants had failed to plausibly show that but for racial animus, Comcast would have contracted with ESN.  The district court granted Comcast’s motion.  An appeal to the Ninth Circuit Court of Appeals followed and the Court of Appeals reversed on the grounds that ESN needed to only plead facts which plausibly showed that race played “some role” in Comcast’s decision making process.  Under this standard, the Court of Appeals held that ESN had met its burden and had established a viable claim against Comcast.  An appeal to the United States Supreme Court followed.

Holding:  At the outset of the opinion, the Court recognized that it has been well established that a claimant that seeks relief for a defendant’s wrongful action must show that he/she would not have been harmed if not for the defendant’s action.  In reviewing the language of Section 1981, the Court reasoned that the statue followed the general rule requiring “but for” causation.  The Court was unswayed by the argument of claimants that the “motivating factor” standard from Title VII of the Civil Rights Act of 1964 should control.  As the Court noted, there was “not a shred of evidence” that Congress intended to use such a standard when analyzing a Section 1981 claim.  Of note, when Congress added the “motivating factor” standard to Title VII in 1991, Congress also amended Section 1981 but chose not to add the “motivating factor” standard to that statute.

Judgment:  In a unanimous decision, the United States Supreme Court vacated and remanded a decision from the Ninth Circuit Court of Appeals and held that a claimant that alleges race discrimination under the Civil Rights Act bears the burden of showing race was the “but for” cause for the claimant’s injury and that burden remains constant throughout the course of the litigation.

The Takeaway:  While this case is not centered on an employment law claim, it does shape the analysis of employment discrimination claims going forward.  In employment law related cases, claimants often raise race discrimination claims under both Section 1981 and Title VII.  Prior to the Supreme Court’s ruling in this case, the same burden of proof was applied to race discrimination claims under both Section 1981 and Title VII.  As a result of the ruling in this case, while the burden of proof on the claimant in a Title VII cases requires the claimant still show that race was a “motivating factor” in a defendant’s actions, a Section 1981 claimant must now establish that race was the “but for” cause of the injury.  For those that routinely deal with race discrimination claims, it would be a good idea to make note of the Supreme Court’s ruling here as the burden of proof has now taken on a much different scope going forward for Section 1981 claims.

Majority Opinion Judge:  Judge Gorsuch

Date:  March 23, 2020

Opinion:  https://www.supremecourt.gov/opinions/19pdf/18-1171_4425.pdf