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Attorney Blog, Human Resources

Supreme Court Deals Employers A Win In § 1981 Claims

Attorney Harrison Oldham

In an effort to take a brief reprieve from the pandemic that has literally swept the nation, this week, we are going to take a look at a decision that was handed down on March 23, 2020. In Comcast Corp. v. National Association of African American-Owned Media et al., the United States Supreme Court held that the “but-for” causation standard applies to racial bias claims under §1981 of the Civil Rights Act of 1866. The decision is a win for employers, as it means that §1981 plaintiffs must prove that but for race, the defendant would not have made the challenged decision, not just that race played a part in the decision.

Congress enacted the Civil Rights Act of 1866 after the Civil War to vindicate the rights of former slaves. Under Section 1981, “[a]ll persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, [and] give evidence . . . as is enjoyed by white citizens.” In other words, section 1981 of the Civil Rights Act prohibits intentional race discrimination in all forms of contracting, including employment. Before this decision, lower courts had split as to whether a § 1981 plaintiff had to prove that race was only one motivating factor among several, or whether a plaintiff must allege and prove that race was the “but for” cause of the challenged decision.

Often, plaintiffs alleging racial discrimination will bring claims under both § 1981 and  Title VII of the Civil Rights Act of 1964; however, § 1981 is often viewed as more favorable for employees. Among other reasons, there is no administrative exhaustion requirement for § 1981 claims, and unlike Title VII, § 1981 has no cap on damages. Section 1981 also has a four-year statute of limitations, compared to 180 days (or 300 days in certain states) under Title VII. Additionally, Section 1981 covers discrimination based only on race or ethnicity, while Title VII covers discrimination based not only on an employee’s race and ethnicity, but a number of other protected areas, such as gender and religion.

In Comcast an African-American owned television network operator sued Comcast because Comcast refused to enter into a contract to carry the operator’s networks.  During negotiations, Comcast cited to several non-discriminatory legitimate business reasons for not wanting to enter into the contract, but the network operator sued alleging that despite these potential legitimate reasons for Comcast’s position, Comcast was also motivated by racial bias.

The district court granted Comcast’s motion to dismiss on the basis that the network operator had not sufficiently alleged that “but-for” Comcast’s alleged racial animus, Comcast would have contracted with the operator (meaning basically the District Court believed that the network operator did not sufficiently argue that race based discrimination was the only reason Comcast did not enter into the contract). On appeal, the Ninth Circuit reversed, holding that a plaintiff only needs to show that race played “some role” in deciding not to enter into a contract, and that under this standard, the plaintiff had stated a viable claim (meaning, essentially the opposite – the network operator only had to argue that race based discrimination was one of the reasons Comcast did not enter into the contract).

In so doing, the Ninth Circuit relied on the causation standard contained in Title VII of the Civil Rights Act, which was specifically amended in 1991 to provide that an employee could prove unlawful discrimination under Title VII by merely showing that race (or other protected characteristic) was a “motivating factor” in the challenged decision.

The Supreme Court agreed to hear the case to resolve a growing circuit split over what causation standard applied to § 1981 claims and ultimately disagreed with the Ninth Circuit’s approach. In reaching its decision, the Court rejected the network operator’s argument that § 1981 should be treated the same as Title VII, which allows plaintiffs to prevail by showing that race was a motivating factor in the decision. Explaining that “[W]e have two statutes with two distinct histories . . . and not a shred of evidence that Congress meant them to incorporate the same causation standard.”

While the decision is a win for employers, its impact is limited to race claims under § 1981. Plaintiffs alleging race discrimination claims under Title VII may still rely on the “motivating factor” theory.


About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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