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U.S. Supreme Court Confirms A But-For Causation Standard For Section 1981 Discrimination Claims – For Private Schools
African-American entrepreneur Byron Allen owns Entertainment Studios Network (ESN), which operates seven television networks. For years, ESN sought to have Comcast Corporation (Comcast), a cable television conglomerate, carry its channels. However, Comcast refused and cited lack of demand, bandwidth constraints, and other programming preferences for its decision. ESN then sued Comcast under 42 U.S.C. section 1981 (Section 1981). Section 1981 guarantees that all persons have the same right to make and enforce contracts as is enjoyed by white citizens. ESN alleged that Comcast systematically disfavored “100% African American-owned media companies” and that the reasons Comcast cited for refusing to carry its channels were pretextual.
The case made its way up to the U.S. Supreme Court to resolve a split among the U.S. Circuit Court of Appeals regarding what type of causation is required to prevail in a Section 1981 claim. Some circuits, including the Ninth Circuit, maintain that a plaintiff must only show that race played “some role” in the defendant’s decision-making process. Other circuits, however, have held that a plaintiff needs to establish that racial animus was a “but-for” cause of the defendant’s conduct. Under that standard, a plaintiff must demonstrate that if not for the defendant’s unlawful conduct, its alleged injury would not have occurred.
The Court concluded that in a Section 1981 claim, the plaintiff bears the burden of showing that race was the but-for cause of its injury. The Court examined the statute’s language, structure and legislative history to determine that a Section 1981 claim requires but-for causation. For example, the Court noted that when it first inferred a private cause of action under Section 1981, it described it as “afford[ing] a federal remedy against discrimination . . . on the basis of race,” which strongly supports a but-for causation standard. The Court also noted that the neighboring statute, 42 U.S.C. section 1982, demands the same causation standard.
While ESN argued that the “motivating factor” causation test found in Title VII of the Civil Rights Act should apply, the Court declined to extend that standard to Section 1981 claims. The Court noted that Section 1981 predates the Civil Rights Act by nearly 100 years and does not reference “motivating factors.” The Court explained: “[We] have two statutes with two distinct histories, and not a shred of evidence that Congress meant to incorporate the same causation standard.” The Court also dismissed ESN’s argument that the motivating factor test should apply only at the pleading phase of a case.
The Court found that to prevail on a Section 1981 claim, a plaintiff must initially plead and ultimately prove that but-for race, the plaintiff would not have suffered the loss of a legally protected right.
Comcast Corporation v. National Association of African American-Owned Media (2020) 140 S.Ct. 1009.
It is far more challenging to establish the but-for causation standard than the motivating factor causation standard. Because the Ninth Circuit previously applied the motivating factor causation standard, this Supreme Court decision makes it more challenging for plaintiffs to win a Section 1981 claim.