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Posts Tagged ‘Section 1981’

Supreme Court Decides That Discrimination Claims Under Section 1981 Must Plead and Prove ‘But For’ Causation

Posted on: April 3rd, 2020

By: Catherine Scott and David Cole

When asserting race discrimination, many plaintiffs bring claims under 42 U.S.C. § 1981, which affords “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” This has been interpreted as allowing race discrimination claims in the employment context, even when there is not an explicit contract between the employer and employee. But until now, there was an open question about the standard of proof required for claims under § 1981. 

The U.S. Supreme Court recently decided this question in the case of Comcast Corp. v. National Ass’n of African American-Owned Media, holding that a § 1981 plaintiff must show that his race was a  “but-for cause” of his alleged injury, and that this burden remains constant throughout the lawsuit. In other words, a plaintiff claiming a denial of rights under § 1981 must initially plead and ultimately prove that, but for his race, he would not have suffered the loss of his rights under § 1981. 

In Comcast, a television network named Entertainment Studios Network (ESN) alleged that it had tried for years to have Comcast host its cable channels, but that Comcast refused. ESN is owned by an African-American entrepreneur, and he alleged that Comcast was discriminating against him and his company, in violation of § 1981, by refusing his channels because of his race. Comcast, on the other hand, said it was for lack of demand for ESN’s programming, bandwidth constraints, and its preference for news and sports programming ESN did not offer.  

Comcast moved to dismiss ESN’s complaint, arguing that it did not allege facts plausibly showing that its decision to not carry ESN’s programming was based on race. While the district court agreed with Comcast, the Court of Appeals for the Ninth Circuit reversed and held that ESN only needed to allege enough facts to plausibly suggest that race played “some role” in Comcast’s decision-making. On appeal, the Supreme Court reversed again and held that the Ninth Circuit’s standard was too lenient. 

ESN argued that, like plaintiffs bringing discrimination claims under Title VII of the Civil Rights Act, plaintiffs bringing claims § 1981 should only have to prove that race was a “motivating factor” in the decision at issue. But the Supreme Court noted that the “motivating factor” standard in Title VII cases is written directly into the statute and is different from the language of § 1981. Therefore, it decided that claims under § 1981 fall under the “ordinary rule” that a plaintiff must prove but-for causation. This means that if the defendant would have made the same decision even if the plaintiff was not a different race, there is no claim under § 1981. Conversely, if the defendant would have made a different decision but for the plaintiff’s race, there is a claim under § 1981.    

The Supreme Court’s decision puts § 1981 claims on the same footing as retaliation claims under Title VII and claims under the Age Discrimination in Employment Act, both of which are also subject to the “but for” standard. It also provides employers with a helpful argument to dismiss specious § 1981 claims early in litigation when they are not supported by adequate facts alleged in the complaint. 

If you have questions or would like more information, please contact Catherine Scott or David Cole at [email protected] or [email protected].

Discrimination Without A Difference: Supreme Court To Decide Whether Section 1981 Requires “But For” Causation Or Whether Same-Decision Defense Applies

Posted on: June 24th, 2019

By: Michael Hill

The U.S. Supreme Court is poised to answer the question of where to draw the line when a decision is motivated in part by race discrimination. Must the plaintiff show the decision would not have been made but for his or her race, or is it sufficient to show that race was one factor behind the decision, even if the same decision would have been made for other, race-neutral reasons?

The case at issue, Comcast Corp. v. National Assoc. of African American-Owned Media, is not actually an employment discrimination case, but the Supreme Court’s decision will impact the realm of employment law because of the statute at issue, 42 U.S.C. § 1981 (“Section 1981”), prohibits race discrimination in making and enforcing contracts (which includes employment contracts).

The issue is whether Section 1981 requires “but for” causation, or whether a “mixed motive” analysis can be used. In Comcast, an African American-owned television network operator sued the cable company, alleging Comcast’s refusal to contract with the networks was racially motivated. The federal district court in California dismissed the case three times at the pleading stage, holding the complaints failed to allege facts to show Comcast had no legitimate business reasons for its decision not to contract with the networks. On appeal, a three-judge panel at the Ninth Circuit Court of Appeals unanimously reversed, holding a Section 1981 claim can proceed as long as race is alleged to have been one factor in the contract decision, even if there were other, race-neutral factors that would have led to the same decision.

The Supreme Court’s decision in Comcast will have a significant impact on the amount of damages available in cases alleges race discrimination in employment. Race discrimination claims under Section 1981 frequently are pled in tandem with Title VII of the Civil Rights Act. Title VII was amended in 1991 expressly to allow for “mixed motive” claims, but the only forms of relief available under a Title VII “mixed motive” claim are declaratory relief and attorney’s fees – no damages, back pay, or right to reinstatement. The language of Section 1981, however, contains no such limitation. Also, unlike Title VII, damages under Section 1981 are not capped; the statute of limitations is longer; and there is no requirement to submit the claim to the EEOC before suing in court. Thus, if the Supreme Court rules that Section 1981 covers “mixed motive” claims (and not just claims of “but for” discrimination), then claims alleging “mixed motive” race discrimination could become more valuable (and thus more costly to defend).

If you have questions or would like more information, please contact Michael Hill at [email protected].