Last month, a relatively united Supreme Court confirmed that the evidentiary standard for §1981 race discrimination claims is subject to the but-for or because-of standard which applies to most tort claims. Comcast v. National Ass’n of African American-Owned Media, Inc., No. 18-1171 (U.S. March 23, 2020). In doing so, the Court affirmed the trial court dismissal of a claim brought by an African-American-owned television network which had alleged that the refusal of COMCAST to carry its station was illegal race discrimination, instead of lack of programming demand, bandwidth constraints and preference for sports and news programming. This is of interest to employers because §1981 claims can be brought by independent contractors, including physicians and other professionals who commonly provide services to a wide-variety of businesses and who otherwise are not covered by Title VII.
According to the Court’s decision, §1981 – which was enacted shortly after the Civil War -- guarantees ““[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” The Plaintiff filed suit after negotiations failed and alleged that Comcast’s explanation for refusing to carry its network was pretextual for race discrimination. Comcast moved to dismiss on the grounds that the allegations failed to satisfy the but-for standard and, after giving the plaintiffs two opportunities to amend their complaint to address this deficiency, the trial court eventually dismissed the complaint for failing to state a claim upon which legal relief could be granted. The Ninth Circuit reversed on the grounds that §1981 only required the plaintiff to allege that race played “some role” in the defendant’s decision.
The Supreme Court reversed. The Court rejected arguments that §1981 only required that race be a motivating factor and that a complaint’s allegations need not be as strong as the evidentiary burden at trial. “[W]hile the materials the plaintiff can rely on to show causation may change as a lawsuit progresses from filing to judgment, the burden itself remains constant.”
It is “textbook tort law” that a plaintiff seeking redress for a defendant’s legal wrong typically must prove but-for causation. University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 347 (2013) (citing W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984)). Under this standard, 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.=. . . .
The guarantee that each person is entitled to the “same right . . . as is enjoyed by white citizens” directs our attention to the counterfactual—what would have happened if the plaintiff had been white? This focus fits naturally with the ordinary rule that a plaintiff must prove but-for causation. If the defendant would have responded the same way to the plaintiff even if he had been white, an ordinary speaker of English would say that the plaintiff received the “same” legally protected right as a white person. Conversely, if the defendant would have responded differently but for the plaintiff ’s race, it follows that the plaintiff has not received the same right as a white person. Nor does anything in the statute signal that this test should change its stripes (only) in the face of a motion to dismiss.
The Court also noted that the “motivating factor” test in Title VII was not created by Congress until 1991 and only applied to injunctive and declaratory relief; employers could still avoid damages and reinstatement by invoking a but-for affirmative defense (which had been created in 1989 by a plurality of the Court in Price Waterhouse). Further, although Congress also amended §1981 in 1991, it did not change its long-standing burden of proof as it did with Title VII.
Earlier this week, the Court also held that the standard for federal employees to prove discrimination is less than the standard which applies in the private sector. Federal employees alleging violation of the Age Discrimination in Employment Act need only to prove that age was a factor in the decision or process when seeking injunctive relief instead of but-for causation, which is still necessary for federal employees to recover compensatory damages. Babb v. Wilkie, No. 18-882 (U.S. April 6, 2020).
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
