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

4/3/20

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].