Recently, 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 – including former employees suing for race discrimination – 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 § 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.”
Plaintiffs alleging race discrimination often bring claims under both § 1981 and Title VII of the Civil Rights Act of 1964; however, § 1981 is, in some ways, 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.
In Comcast, an African-American owned media company, Entertainment Studios Network (ESN), alleged that Comcast refused to carry its television channels because it systematically disfavored “100% African American-owned media companies.” The district court dismissed ESN’s claim. But the Ninth Circuit reversed, concluding that a § 1981 plaintiff need only plead facts plausibly showing that race played “some role” in the defendant’s decision-making process to advance past the pleading stage.
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. At the outset, the Court recognized that the “but-for” causation standard is the standard “against which Congress is normally presumed to have legislated when creating its own new causes of action.”
While there are exceptions to that rule, the Supreme Court found that none applied. Instead, “taken collectively, clues from the statute’s text, its history, and our precedent persuade us that §1981 follows the general rule,” the Court explained. As a result, “a plaintiff bears the burden of showing that race was a but-for cause of its injury.”
In so holding, the Court rejected ESN’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. “[W]e have two statutes with two distinct histories,” the Court explained, “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.