In a landmark decision delivered on March 23, 2020, the U.S. Supreme Court held that a but-for causation standard applies to claims brought under 42 U.S.C. § 1981, the Civil Rights Act of 1886, and that this standard applies throughout the lifetime of the litigation, including the initial pleading stage. See Comcast Corp. v. National Association of African American-Owned Media, No. 18-1171, __ U.S. __ (2020).
The case arose after negotiations between Comcast and Entertainment Studios Network (ESN) failed. ESN wanted Comcast to carry its channels, but Comcast declined, citing lack of demand for ESN's programming, bandwidth constraints, and its preference for news and sports programming that ESN did not offer. ESN sued Comcast, alleging that Comcast's refusal violated 42 U.S.C. § 1981(a), which guarantees, among other things, "[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens."
The district court dismissed ESN's complaint, finding ESN repeatedly failed to adequately allege that but for racial animus, Comcast would have contracted with ESN. ESN appealed to the Ninth Circuit, arguing that a motivating-factor standard should apply to Section 1981 claims or that some modified burden should apply at the pleading stage. The Ninth Circuit agreed with ESN, holding that a Section 1981 plaintiff need not point to facts plausibly showing that racial animus was a "but for" cause of the defendant's conduct. Instead, the Ninth Circuit held, a plaintiff must only plead facts plausibly showing that race played "some role" in the defendant's decision-making process.
The Ninth Circuit's holding was contrary to opinions from other circuits regarding Section 1981's causation requirement. The Supreme Court agreed to review the case to resolve the circuit split.
Relying on "textbook tort law" and statutory clues to reach its decision, the Supreme Court reversed the Ninth Circuit, rejecting ESN's arguments that (1) a Section 1981 plaintiff only bears the burden of showing that race was a motivating factor in the defendant's challenged decision or that (2) even if but-for causation applies at trial, a plausible motivating factor showing is all that is necessary to overcome a motion to dismiss at the pleading stage. Instead, the Supreme Court held, a Section 1981 plaintiff must establish but-for causation and this burden applies throughout the lawsuit, including the pleading phase. In other words, "[t]o prevail, a plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally protected right."
The Supreme Court remanded the case to the Ninth Circuit to evaluate ESN's pleading in light of the applicable but-for standard.
Highlights of the Court's analysis include:
- Congress, at the same time that it amended Title VII to add the motivating-factor standard, also amended Section 1981 and did not make the same motivating-factor amendment there;
- a neighboring section of the 1866 Act uses the terms "on account of" and "by reason of," §2, 14 Stat. 27—phrases often held to indicate but-for causation—and gives no hint that a different rule might apply at different times during a lawsuit;
- the "ancient and simple 'but-for' common law causation test" is the default rule against which Congress is normally presumed to have legislated when creating new causes of action such as Section 1981; and
- the essential elements of a claim normally remain constant through the life of a lawsuit—to determine what a plaintiff must allege at the outset of a lawsuit, courts generally ask what the plaintiff must prove in trial at its end.
The Court's decision will be helpful to employers defending Section 1981 suits, as plaintiffs will be obligated to meet the more stringent but-for causation standard, even at the pleading stage.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.