This post has no Corona Virus content. But we must take a break from our extensive COVID coverage. Because the U.S. Supreme Court has written a decision affecting employment law, albeit on  a rather narrow issue. 

Comcast Corp. v. Natl. Assn. of African American-Owned Media  (opinion here) is not an employment law case. However, the statute it’s decided under, 42 U.S.C. section 1981, applies to employment law. The U.S. Supreme Court decided unanimously that a claim under Section 1981 must include proof of “but-for” causation.  

By way of background, Entertainment Studios Network (ESN), the operator of seven television networks sought to have Comcast carry its channels on its cable system. Comcast refused,

citing lack of demand for ESN’s programming, bandwidth constraints, and its preference for news and sports programming that ESN didn’t offer. 

ESN sued, claiming that Comcast denied ESN access because it is African-American owned.  ESN claimed Comcast’s reasons were pretexts for race discrimination.  ESN relied on 42 U.S.C. section 1981, which, in part, guarantees:

“[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” 

The dispute in the courts below centered on ESN’s burden of proof. The Court of Appeals for the Ninth Circuit decided ESN has to prove only that 

a plaintiff must only plead facts plausibly showing that race played “some role” in the defendant’s decisionmaking process. 

The Supreme Court granted certiorari to review whether the Ninth Circuit’s standard of causation was correct.  The Court decided it was not.  Citing the general rule

a plaintiff must demonstrate that, but for the defendant’s unlawful conduct, its alleged injury would not have occurred. This ancient and simple “but for” common law causation test, we have held, supplies the “default” or “background” rule against which Congress is normally presumed to have legislated when creating its own new causes of action. 570 U. S., at 346–347 (citing Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, 711 (1978)). That includes when it comes to federal antidiscrimination laws like §1981. See 570 U. S., at 346–347 (Title VII retaliation); Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176– 177 (2009) (Age Discrimination in Employment Act of 1967).

the Court decided that nothing in Section 1981 suggested that Congress intended to depart from it. 

In Title VII cases, which apply only in employment situations, the plaintiff has to prove only that a protected criterion was “a motivating factor,” which is a more forgiving standard than “but-for” causation. But Congress amended Title VII to supply this causation provision in the Civil Rights Act of 1991.  Congress did not so amend section 1981 as part of the CRA 1991.

Justice Ginsburg joined all but a footnote of the Court’s opinion and concurred separately.  Justice Gorsuch wrote the opinion. 

 

 

 

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