On March 23rd, the Supreme Court issued a unanimous decision in Comcast Corp. v. National Assoc. of African-American-Owned Media, et al., 2020 WL 1325816 (U.S.). The Court’s decision in Comcast addresses the issue of causation under a race-based 42 U.S.C. § 1981 claim. Section 1981 is one of the nation’s Reconstruction (post Civil War) Era civil rights laws. The Court’s decision rejects a plaintiff’s use of mixed-motive causation for claims under § 1981.
The fundamental dispute in this case arose between Comcast, a cable television company, and African-American entrepreneur Bryon Allen, owner of Entertainment Studios Network (“ESN”). ESN operates seven television networks. According to Comcast, its refusal to carry ESN’s networks was motivated by a lack of demand for ESN’s programing. ESN claimed that Comcast’s refusal to carry its networks was pretextual, and ESN alleged that Comcast “systematically disfavored ‘100% African American-owned media companies.’” ESN claimed Comcast’s alleged discrimination violated § 1981’s prohibition of denying contract rights based on race or citizenship.
Congress passed § 1981 in 1866 to ensure that African-Americans have the same right “to make and enforce contracts . . . as is enjoyed by white citizens.” Since its passage, § 1981 interpretation has expanded its application to ensure all races are equal in the eyes of the law in “proceedings for the security of persons and property.” There has been a circuit split about the necessary causation a plaintiff needs to show in establishing a § 1981 violation. The Ninth Circuit has stated the test is whether discriminatory intent played any role in the adverse decision, but other circuits have held there is a “but-for causation” standard.
ENS argued that the Ninth Circuit’s mixed-motivation causation should be the standard. Part of the reasoning was that Title VII, which prohibits race discrimination in employment, uses a motivating factor test. Under Title VII, the Supreme Court held that a plaintiff only has to demonstrate that the discrimination was a motivating factor in a defendant’s adverse decision. The defendant then must show it would have made the same decision if it had not taken the plaintiff’s protected trait into account. This places the burden on the defendant to meet the but-for standard. ENS wanted the but-for standard to be Comcast’s burden.
After analyzing both the historical and statutory background of § 1981 and other civil rights laws, the Court unanimously held that § 1981 has a “but-for” liability standard. Furthermore, the Court stressed that “[i]t is ‘textbook tort law’ that a plaintiff seeking redress for a defendant’s legal wrong must prove but-for causation.” In addition, but-for causation is the default standard Congress follows when creating new causes of actions. According to the Court’s decision, “a § 1981 plaintiff . . . must show that he [or she] was deprived of the protected right and then establish causation . . . .”
This change makes it much harder for a plaintiff to win a claim under § 1981. Defendants should be aware that despite the higher standard a plaintiff must meet in bringing claims under § 1981, a plaintiff can still establish liability if the defendants’ agents are making an adverse decision motivated solely by the plaintiff’s race.
If someone has any questions about whether they might have a viable claim or face liability under § 1981, they should consult an attorney at Mitchell & Sheahan, P.C.