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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.
Continue Reading Supreme Court confirms race discrimination claims under section 1981 require “but-for” causation

2013 is shaping up to be the year that that party ended for state evasion of the Federal Arbitration Act. States have traditionally relied on a number of stratagems to avoid the preemptive force of the FAA’s “liberal federal policy favoring arbitration.” (Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 [1983]). One was to hide behind the FAA’s “savings clause,” which permits states to refuse to enforce arbitration agreements on “such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The savings clause preserves generic contract defenses such as fraud, duress or unconscionability, and ensures that they are not preempted. States made liberal use of the savings clause to avoid the FAA’s enforcement mandate by deploying a veneer to generality to save rules aimed at limiting the enforcement of arbitration agreements.Continue Reading 9th Inning, Two Outs, None On for California State Courts That Ignore Federal Arbitration Act