On March 23, 2020, in Comcast Corp. v. National Association of African American Owned Media, the Supreme Court resolved a circuit split on whether discrimination claims brought under section 1981 require “but-for” causation or whether they can be analyzed under Title VII’s “motivating factor” test. The Court confirmed “but-for” causation is required.
The plaintiff in the case, Entertainment Studios Network (ESN), is an African American-owned television network operator that sought to have Comcast carry its channels. Comcast refused, citing reasons such as lack of programming demand, bandwidth constraints, and a preference for other types of programming that ESN does not offer. ESN and the National Association of African American-Owned Media sued, alleging Comcast violated 42 U.S.C. section 1981, which guarantees “[a]ll persons…the same right…to make and enforce contracts…as is enjoyed by white citizens.”
On appeal from the district court’s dismissal of ESN’s complaint for failure to state a claim, the Ninth Circuit reversed, holding ESN was only required to plead that race played “some role” in Comcast’s decision-making process.
In a near-unanimous decision (Justice Ginsburg joined the entirety except for a footnote), the Supreme Court reversed the Ninth Circuit, and held discrimination claims brought under section 1981 must be analyzed under a “but-for” causation standard. That is, a plaintiff bears the burden of pleading, and ultimately proving, that but for the plaintiff’s race, the defendant’s decision would have been different. It is not enough for a plaintiff to allege discriminatory animus played “some role” or was only a “motivating factor” in the defendant’s decision.
In reaching its decision, the Supreme Court relied on the statute’s text, its history, and Supreme Court precedent. With respect to its text, the Court concluded the language guaranteeing each person the “same right…as is enjoyed by white citizens” is “suggestive” of but-for causation. In looking at section 1981’s history, the Court relied upon the criminal sanctions Congress adopted in a neighboring section of the statute, which permit prosecution of anyone who “depriv[es]” a person of “any right” protected under the Civil Rights Act of 1866 “by reason of” a person’s “color or race.” The “by reason of” term, the Court explained, is one that the Court has often held to indicate a but-for causation requirement and the default in common law is but-for causation. Finally, the Court referred back to its section 1981 precedent, in which it had previously required but-for causation.
The Supreme Court rejected ESN’s invitation to adopt the “motivating factor” causation test found in Title VII of the Civil Rights Act of 1964. The Court cited the fact that Congress amended Title VII in 1989 to add the “motivating factor” standard, but did not amend section 1981 to add the same standard, such that there is “not a shred of evidence that Congress meant [the two statutes] to incorporate the same causation standard.”
The Comcast decision is important to employers because Section 1981 also prohibits discrimination in employment decisions based on race. Accordingly, employers should keep the Supreme Court’s Comcast decision in mind when defending section 1981 discrimination claims.