Case No. 18-1171 | 9th Cir.
Preview by Boseul (Jenny) Jeong, Online Editor
After Entertainment Studios Networks (“ESN”) negotiated with Comcast to have its television networks carried on Comcast’s cable system, ESN filed a suit arguing that there was a conspiracy against wholly African American-owned networks in violation of 42 U.S.C. § 1981. Reversing the district court’s dismissal, the Ninth Circuit held that the plaintiff only needs to allege that discriminatory intent played any role, instead of but-for causation which is the presumed “default rule.” Nat’l Ass’n of African American-Owned Media v. Charter Commc’ns, Inc., 915 F.3d 617, 624 (9th Cir. 2019); Nat’l Ass’n of African American-Owned Media v. Comcast Corp., 743 Fed.Appx. 106, 107 (9th Cir. 2018). Comcast filed a certiorari petition asking whether a § 1981 claim fails or not without but-for cause.
Comcast relied on the text, history, structure and context of § 1981 in arguing that but-for causation based on factual allegations is required as a default rule. It argued that: (1) but-for causation was “an indispensable element” of common-law torts around the time of Section 1981’s enactment; (2) the motivating factor standard was not adopted until the next century after the enactment; (3) the motivating factor standard was applied to a subset of Title VII claims under very limited circumstances which was not extended to Section 1981 claims; and (4) absence of the phrase “because of” in a statute is insufficient to prove Congress did not intend the but-for causation standard to apply. Reply Brief for Petitioner at 2–4, 13, 17, Comcast Corp. v. Nat’l Ass’n of African American-Owned Media, 18-1171 (U.S. filed Oct. 23, 2019). According to Comcast, under the but-for causation standard the Respondent would have to argue that Comcast would have entered into a contract if the ESN was owned by whites. The Government filed an amicus brief addressing similar points in favor of Comcast.
On the other hand, National Association of African American-Owned Media argued that even though both approaches had been adopted for civil rights statutes, a lower burden is required for race and sex discrimination under Title VII. It argued that once the plaintiff shows a prima facie case, the defendant has the burden to show legitimate and nondiscriminatory reasons. It also emphasized the implications of the rule choice. National Association of African American-Owned Media cautioned the Court that the but-for causation requirement would cause dismissal of many potentially meritorious claims. It pointed to: (1) Patterson v. McLean Credit Union, 491 U.S. 164 (1989), where, according to the Respondent, the Court adopted the burden shifting approach for § 1981 claims and Congress approved of the approach when it abrogated part of Patterson’s holdings but not the burden shifting framework; (2) enhanced stare decisis force of the approach as Patterson is a statutory interpretation decision; (3) the language of § 1981, affording the “same right” to contract for all racial minorities, which can be interfered with by mere “motivating factors”; (4) the Court’s tendency to require but-for causation for statutes with specific language such as “because” or “based on”; (5) Section 3 of the Civil Rights Act of 1866, which shows rejection of the common law when it lacks suitable remedies; and (6) the purpose of the Section 1981, forbidding all racial discrimination. Brief for Respondents at 13–15, 31, 39–40, 45, Comcast Corp. v. Nat’l Ass’n of African American-Owned Media, 18-1171 (U.S. filed Sept. 23, 2019).
Both parties argue the text, history and the context of § 1981 support their positions, and now it is up to the Court to decide which interpretation is more persuasive.