Supreme Court Confirms Strict “But for” Causation Test Applies to Section 1981 Claims

On Monday, March 23, the United States Supreme Court, in a nearly unanimous opinion, ruled that a plaintiff asserting race discrimination claims in the making of a contract under 42 U.S.C. § 1981 (Section 1981) bears the burden of initially pleading and ultimately proving that racial bias was the “but for” cause of the plaintiff’s injury. The decision, which resolves a split among the courts of appeals, makes it more difficult for plaintiffs to prevail on Section 1981 claims. It also brings Section 1981 claims in line with the standards applied to age discrimination and retaliation claims brought under federal statutes. 

In Comcast Corp. v. National Association of African American-Owned Media, plaintiff Entertainment Studios Networks (ESN), a small, minority-owned television-program provider and its affiliates, sued Comcast under Section 1981 for refusing to carry ESN channels. Comcast denied the allegations, insisting it denied ESN a contract because of bandwidth constraints, a lack of adequate viewer interest in ESN’s programming, and the network’s preference for sports and news programming that ESN did not offer. At issue before the Court was the parties’ dispute over ESN’s burden of proof. While Comcast argued that ESN must show the network would have carried its channels “but for” racial bias — the standard applied to age discrimination claims under the Age Discrimination in Employment Act (ADEA) and retaliation claims under Title VII of the Civil Rights Act of 1964 (Title VII) — ESN alleged it need prove only that racial bias was a “motivating factor” in Comcast’s decision, applying the less-burdensome standard used to evaluate discrimination claims under Title VII.   

In a unanimous decision (with Justice Ginsberg concurring), the Court sided with Comcast, definitively ruling that a strict “but-for” causation standard applies to Section 1981 claims, bringing the statute in line with ADEA claims and retaliation claims under Title VII. The Court’s decision vacates an unpublished decision of the U.S. Court of Appeals for the Ninth Circuit, which allowed ESN to plead its Section 1981 claim under the “motivating factor” test, and remands the case to the appellate court for application of the “but-for” standard to the facts at hand. 

What This Means for Employers

Moving forward, the Court’s decision in Comcast will make it easier for employer-defendants to obtain pretrial dismissal of discrimination claims brought under Section 1981 and to defend against such claims at trial or on summary judgment. The practical implications of the Comcast decision are limited, however, because Section 1981 only applies to racial bias in the making of contracts, and employees may still assert discrimination claims under Title VII, under which they need only prove that racial bias was a motivating factor in order to prevail. 

For questions regarding the Comcast decision and its implications for employers, please contact a member of Kramer Levin’s Employment Law Department.