Does a plaintiff state a claim under 42 U.S.C. § 1981 in the absence of but-for causation by alleging that racial discrimination was a motivating factor in the defendant’s refusal to contract?
This case asks the Supreme Court to consider whether claims under Section 1981 can survive absent a showing that race was the but-for cause of the plaintiff’s harm. Here, NAAAOM sued Comcast for racially discriminating against ESN’s network by refusing to enter into a contract with them. Comcast argues that a plaintiff cannot successfully plead race discrimination if race was not the but-for cause—or the actual cause—of the refusal to contract. NAAAOM counters that the correct causation standard is a “motivating factor” or “mixed-motives” approach in which racial discrimination need only be one factor in establishing a claim under Section 1981. This case’s outcome could affect how Section 1981 and Title VII claims are brought by marginalized communities and how employers will allocate resources to handle litigation.
Questions as Framed for the Court by the Parties
Whether a claim of race discrimination under 42 U.S.C. § 1981 fails in the absence of but-for causation.
Entertainment Studios (“ESN”) is a media company with operating segments in television networks, production, and distribution. In order to operate, ESN relies on cable operators to carry their content to ESN’s paid subscribers. This type of arrangement is referred to as a “carriage contract,” and the ability to enter into these contracts allows organizations such as ESN to depend on the third-party’s infrastructure to transmit their content to paying subscribers.
In 2008, ESN met with senior executives at Comcast Corporation (“Comcast”) who managed television licensing. The meetings with senior executives occurred on multiple occasions over several years with the most recent meeting in 2015. Despite ESN’s success in negotiating carriage contracts with a variety of operators, ESN was unsuccessful in negotiating an agreement with Comcast.
Subsequently, the National Association of African American-Owned Media and Entertainment Studios Networks (collectively “NAAAOM”) filed a lawsuit in the Central District of California (the “District Court”), alleging that Comcast’s failure to enter into a carriage contract with ESN violates 42 U.S.C. § 1981, which protects against racial discrimination in the employment context. NAAAOM argued that Comcast’s employment decision was influenced, at least in part, by racial animus towards ESN’s African American ownership. The District Court dismissed the original complaint and two separate amended complaints after Comcast moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The District Court reasoned that although NAAAOM presented additional allegations, it “failed to allege any plausible claim for relief” under Section 1981.
On appeal, a three-judge panel of the United States Court of Appeals for the Ninth Circuit (the “Ninth Circuit”) unanimously reversed and remanded the District Court’s dismissal. Relying on its holding in NAAAOM v. Charter Commc’n, Inc, the Ninth Circuit held that a valid Section 1981 claim merely requires that racial discrimination play any role in a defendant’s employment action and does not necessarily have to be the but-for cause—or the actual cause of the employment action. The Ninth Circuit explained that departing from the default but-for cause standard was warranted because Section 1981 does not use but-for language.
Instead, the Ninth Circuit stated that Section 1981 incorporates the “mixed-motive standard,” which is violated when discrimination plays any role—not just the actual cause—in the employment decision. In sending the case back to the District Court, the Ninth Circuit reasoned that the facts, taken in the light most favorable to the plaintiff, showed that race was plausibly a contributing factor in Comcast’s contracting decision. Expressly, the Ninth Circuit established that NAAAOM could have shown racial animus by pointing to Comcast’s refusal to sign a carriage contract even after ESN complied with Comcast’s repeated requests. Thus, the Ninth Circuit confirmed that NAAAOM made plausible factual allegations in the District Court and, thus, reversed the District Court’s judgment.
PLAIN LANGUAGE OF SECTION 1981
Petitioner Comcast argues that the Court should reverse the Ninth Circuit’s decision and dismiss the lawsuit because the plain text of Section 1981 requires but-for causation for a plaintiff to successfully bring a racially discriminatory contract claim. Comcast maintains that Section 1981’s language necessitates that every person is afforded the “same right” as white citizens to make and enforce contracts. Comcast urges the Court to interpret the statute in the same way that the United States Court of Appeals for the Seventh and Third Circuits have viewed the provision. Under this view, Comcast contends that a party is afforded the “same right” to contract unless race was the sole factor causing the alleged harm. Thus, under Comcast’s reading of the statute, a plaintiff is barred from collecting damages for discrimination under Section 1981 if the same outcome would have resulted had the party been white. Comcast cites Runyon v. McCrary and Saint Francis College v. Al-Khazraji—although not directly presenting the same issue—to show that the Court has a longstanding precedent of plaintiffs showing that the challenged action was taken “because of” race in Section 1981 cases. Comcast also refers to the original language in the Civil Rights Act of 1866 (including what is now Section 1981) to argue that criminal prosecution of an individual had also required but-for causation. Comcast argues that, when reviewed under the broader statutory regime, that Section 1981 thus must require but-for causation because the original language in the act did so in criminal suits.
Respondents NAAAOM counter that the Court should uphold the Ninth Circuit’s decision because the ordinary meaning of Section 1981 shows that a defendant is liable for discriminatory contract decisions if race played any factor, even if that factor was not the primary or only reason. NAAAOM looks to the dictionary definition of the word “same” to assert that a defendant violates Section 1981 if race was a “motivating factor” in refusing to contract because a party cannot be guaranteed the same right as white citizens to make and enforce contracts if race, in any way, impeded the person of color. NAAAOM maintains that a burden-shifting framework is appropriate because the courts have consistently rejected but-for causation as an element for recovery under other statutes that use the word “same.” For example, NAAAOM points to the Court’s interpretation of the Pregnancy Discrimination Act’s use of the word “same” in Young v. United Parcel Service, Inc.. In that case, NAAAOM explains that the Court rejected but-for causation and implemented a burden-shifting framework. NAAAOM also contends that Section 1981 lacks any language such as “because,” “based on,” and “by reason of” which the Court has traditionally found to be indicative of but-for causation. Furthermore, NAAAOM asserts that Comcast implicitly concedes this by failing to cite case law that uses the but-for terminology. NAAAOM argues that Comcast’s cited case law instead utilizes language typically indicative of mixed-motive standards as opposed to the but-for causation standard.
THE DEFAULT RULE
Comcast contends that the historical context surrounding Section 1981’s creation suggests that but-for causation is the default rule for tortious acts. Comcast asserts that treatises and cases published contemporaneously with the enactment of the Civil Rights Act of 1866 considered but-for causation necessary for a tort claim. Comcast continues that courts should interpret the Civil Rights Act of 1866 in light of precedent and common law principles in place at the time of Section 1981’s implementation. Comcast also points to the Restatement (First) of Torts as confirming that the but-for cause standard is the default legal standard and further contends that it was not until long after the Civil Rights Act’s enactment that courts began to stray from this standard. Thus, Comcast maintains that applying modern causation approaches to a Reconstruction-era statute without Congressional approval erroneously misappropriates Section 1981.
NAAAOM counters by suggesting that Comcast selectively quotes the Civil Rights Act of 1866 and omits pertinent language. It argues that Congress intended for courts to reject the common law when it has been modified over time to remain consistent with updates to federal law. Thus, NAAAOM asserts, Reconstruction-era interpretations of causation should not apply because the common law has since changed to allow suitable remedies for discrimination. Further, NAAAOM counters Comcast’s assertion that common law torts required but-for causation by showing that those cases only involved negligence and not intentional torts—as is the case here. Although Comcast does point to some cases applying the but-for causation standard to intentional torts, NAAAOM asserts that this does not prove that the but-for standard is “indispensable.”
INTENTIONAL DEPARTURE FROM BUT-FOR CAUSATION
Comcast posits that Congress intended Section 1981 to incorporate the but-for causation standard because it amended Section 1981 but left the causation standard unchanged. Furthermore, Comcast points to the Civil Rights Act of 1991 where Congress adopted the mixed-motive test, showing that Congress knows how to implement such a standard but chose not to do so in Section 1981. Additionally, Comcast contrasts Congress’s additions to Title VII of the Civil Rights Act of 1964 with the changes made to Section 1981. For example, it explains that Congress changed Title VII so that plaintiffs could show race as a motivating factor for discrimination claims. However, according to Comcast, Congress did not adopt such language in Section 1981 and instead created both a public and a private right of action—leaving the causation standard unchanged. Comcast maintains, therefore, that Congress knows how to alter a provision to make race a motivating factor but failed to do so in Section 1981. Further, Comcast contends that if the Court were to find that Section 1981 excludes a but-for causation requirement, other statutes like Title VII would become superfluous because a plaintiff could bypass the Title VII framework by pleading harm under Section 1981.
NAAAOM refutes Comcast’s allegations by arguing that, while the Court’s interpretation of Section 1981 in Patterson v. McLean Credit Union limited “making and enforcing” contracts to pre-contractual conduct, the Court held that a burden-shifting framework was appropriate under Section 1981. According to NAAAOM, the 1989 Patterson decision is indicative of Congress’s intent to employ the mixed-motive standard because Congress amended Section 1981 with the Civil Rights Act of 1991 but left the causation language alone. Thus, NAAAOM denies that Congress was silent on the issue and instead “spoke” when it made affirmative changes to Section 1981 but did not change the causation standard. NAAAOM further argues that such a standard would not undermine the framework of Title VII because of disparate impact and treatment of a variety of forms of discrimination. Additionally, NAAAOM concludes that the Court has long held that Title VII and Section 1981 are “co-extensive” and do not mutually exclude each other, thereby allowing harmed plaintiffs to seek recovery under either or both statutes.
SUFFICIENCY OF PLEADINGS
Comcast argues that NAAAOM failed to sufficiently allege but-for causation because none of the alleged discrimination claims were race-based. Comcast maintains that NAAAOM’s pleadings make discriminatory conclusions unsupported by underlying facts. Comcast argues that none of these factual allegations meet the Ashcroft v. Iqbal plausibility standard because NAAAOM’s claims fail to show race played a role in Comcast’s refusal to contract. Comcast maintains that NAAAOM concedes that Comcast has contracted with two other African American-owned television networks. Additionally, Comcast claims NAAAOM “sidestepped” Comcast’s amiability towards African American-owned networks by creating a “gerrymandered” racial category of 100% African American-Owned networks. Comcast posits that such a category fails legally and factually because Comcast has carried 100% African American-owned channels before and because, currently, ESN is the sole multi-channel media company owned 100% by African Americans.
NAAAOM answers Comcast’s contentions by arguing that they are moot since the Court did not grant certiorari to decide whether NAAAOM properly alleged but-for causation. However, even if the Court were to decide on that issue, NAAAOM alleges that they adequately pled causation under any standard. NAAAOM points to eight distinct instances where race likely played a role in Comcast’s refusal to contract with NAAAOM—including Comcast stating there is not enough demand for NAAAOM’s channels despite other providers broadcasting the channels to 80 million people and one of the channels winning an Emmy Award. Furthermore, NAAAOM contends that requiring a Section 1981 plaintiff to plead a prima facie case of racial discrimination—and combat the defendant’s facially race-neutral reasons—is too high a burden to impose before discovery. Thus, NAAAOM asserts, the only plausible showing that the plaintiffs should be obligated to make to survive a motion to dismiss is that race played a motivating factor in the defendant’s refusal to contract.
EFFECT ON BUSINESSES VS. PROTECTION OF MINORITIES
The Chamber of Commerce of the United States of America, the National Federation of Independent Business, and the National School Boards Association (collectively the “Chamber”), in support of Comcast, argue that the Ninth Circuit’s decision exacerbates businesses’ litigation burden. The Chamber explains that if the Court upholds a more lenient mixed-motive standard to independent contractors, then it could create meritless racial discrimination cases. Additionally, it argues that this new standard erodes the predictive value of the relatively well-developed Title VII legal regime governing racial-discrimination claims in the employment contextSpecifically, it contends that the Ninth Circuit’s rule permitting mixed-motive racial discrimination claims under Section 1981 would allow independent-contractor plaintiffs to bypass Title VII’s exclusion of such plaintiffs. The Chamber also maintains that the standard would undermine Title VII’s usefulness and increase businesses’ litigation burden by incentivizing plaintiffs to file a claim under Section 1981’s relatively low evidentiary standards. Therefore, the Chamber contends that the Ninth Circuit’s decision in this matter may encourage independent contractors to file meritless claims of racial discrimination against employers if their bids are rejected, while simultaneously increasing pressure on businesses to settle the claims that are filed.
By contrast, the Lawyers’ Committee for Civil Rights Under Law, in support of NAAAOM, argues that Section 1981 offers vital legal recourse to individuals, such as independent contractors, who currently lack Title VII protection. The Committee argues that because Title VII omits independent contractors from its scope, Section 1981 serves as a safe harbor for those independent contractors who are racially discriminated against and have no other legal recourse. Moreover, the Committee contends that technological innovations have led to the supplanting of traditional jobs with independent contractors which are disproportionately comprised of minorities. It argues that these minorities often proceed pro se—or without a lawyer—decreasing their chances of successfully litigating race-discrimination claims. As well, they maintain that judges may impose their implicit bias when weighing the but-for factors which would work against minority communities. Therefore, the Lawyers’ Committee concludes that the mixed-motives standard appropriately redresses racial discrimination against employees and independent contractors under Title VII and mitigates the vulnerability of a growing employment category to racial discrimination in the employment context.
VOLUME OF FRIVOLOUS LAWSUITS
The Washington Legal Foundation, (the “WLF”) in support of Comcast, argues that the Ninth Circuit’s decision will incentivize plaintiffs to file frivolous claims. The WLF elaborates that a mixed-motive approach under Section 1981 would allow nearly any allegation of discrimination to constitute a plausible claim, forcing employers to acquiesce to even meritless claims of racial discrimination. The Chamber agrees, adding that this influx of cases would harm employers both financially and reputationally as they are unable to dismiss cases early and avoid the substantial costs of litigation. Furthermore, the WLF explains that the Ninth Circuit does not provide a standard for how significant the discrimination must be before it can be considered “a factor” in the employment decision. Therefore, the WLF contends that frivolous claims will inundate courts and force employers to divert resources to defend against these claims.
The Committee, in support of NAAAOM, counters the WLF’s floodgates concern by pointing to other contexts where the mixed-motive standard has not led to an influx of cases. For example, it explains that other circuit courts use the mixed-motive standard in Section 1981 cases but have not been flooded with litigation. Furthermore, the Committee notes that nearly thirty years ago, courts adopted a mixed-motive standard under Title VII but never saw an increase in cases. It also asserts that there is not likely to be a floodgates concern because so few litigants—as little as three percent of potential plaintiffs—bring employment discrimination claims.The Committee continues by arguing that Comcast’s but-for standard would block too many cases from reaching the courts, as this heightened standard will require more discovery, strategic planning, and use of experts. It elaborates that this increased cost is likely to disproportionately affect low-income litigants who cannot afford counsel and thus will be even more likely to lose under the heightened but-for standard. In fact, the Committee adds that from 1998 to 2017, plaintiffs did not have counsel in approximately nineteen percent of employment discrimination cases, showing that a heightened standard would affect a significant number of cases and litigants.
- Adam Liptak: Supreme Court to Hear Racial Discrimination Case Against Comcast, New York Times (June 10, 2019)
- Tracy Jan: Civil rights groups say Comcast is trying to weaken a key protection against racial discrimination, The Boston Globe (October 2, 2019).
- Valerie Russ & Bob Fernandez: Comcast lawsuit in Supreme Court could cause ‘irreparable harm’ to minority protections, NAACP warns, The Philadelphia Inquirer (October 2, 2019).