Chemerinsky: SCOTUS Comcast case is a serious loss for civil rights
Erwin Chemerinsky. Photo by Jim Block.
The U.S. Supreme Court’s decision on March 23 in Comcast v. National Association of African American Owned Media is a significant setback for civil rights plaintiffs.
At the outset, I should disclose that I was the losing attorney in this case, having argued for the National Association of African American Owned Media. As a result, I will leave critiquing the decision to others, but I think I can explain fairly what the case did and why it matters.
Byron Allen is a businessman, performer and owner of many cable channels, including the Weather Channel. This litigation involves seven channels that he owns. They are carried on most cable and satellite services, such as Verizon Fios, AT&T U-verse and DirecTV. Comcast and Charter Communications, though, do not carry these channels.
Allen alleges that his company, Entertainment Studios, went to both Comcast and Charter Communications and were told the steps necessary to carry the channels. He claims that he spent hundreds of thousands of dollars to meet these requirements, only to be told that the cable companies had no bandwidth for his channels. Allen alleges that the companies nonetheless each added dozens of channels owned by white individuals.
Allen’s complaint alleges that a Comcast executive candidly told Entertainment Studios why it refused to contract: “We’re not trying to create any more Bob Johnsons.” Bob Johnson is the African American founder of Black Entertainment Television, known as BET, a groundbreaking network that was eventually sold to Viacom for $3 billion.
Allen sued Comcast and Charter Communications pursuant to 42 U.S.C. §1981, which prohibits race discrimination in contracting. Adopted as part of the Civil Rights Act of 1866, section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts … as is enjoyed by white citizens.”
The two cases were assigned to different federal district court judges in Los Angeles. Comcast’s motion to dismiss was granted, while Charter Communications’ was denied. Entertainment Studios appealed the dismissal of the Comcast case to the Ninth Circuit and the district judge certified Charter Communications’ interlocutory appeal.
The Ninth Circuit ruled in favor of Entertainment Studios. The Court of Appeals concluded that it was sufficient that the complaints in both cases alleged that race was a motivating factor for the denial of the contracts. Comcast and Charter Communications both sought certiorari, and Comcast’s petition was granted, while the Charter Communications petition was held pending the decision.
Supreme Court Decision
The Supreme Court unanimously reversed and remanded the case back to the Ninth Circuit. Justice Neil M. Gorsuch wrote for the court, which held that a plaintiff must allege and prove “but-for” causation in order to prevail in a suit under section 1981.
The court declared: “It is ‘textbook tort law’ that a plaintiff seeking redress for a defendant’s legal wrong typically must prove but-for causation. Under this standard, a plaintiff must demonstrate that, but for the defendant’s unlawful conduct, its alleged injury would not have occurred.” The court said that nothing in the statutory language or history of Section 1981 provides a basis for concluding that other than but-for causation is required.
The high court was explicit that this requirement must be met at the pleading stage, as well as ultimately at summary judgment or trial: “Here, a plaintiff bears the burden of showing that race was a but-for cause of its injury. And, while 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.”
Justice Ruth Bader Ginsburg concurred, and concurred in the judgment to emphasize that section 1981 prohibits race discrimination in the making of contracts. The majority said it was not addressing this issue. She emphasized the broad remedial purpose of the Civil Rights Act of 1866.
The court remanded the case to the 9th Circuit to give Entertainment Studios the opportunity to argue that its complaint meets the but-for causation requirement.
Most important, the court’s decision means for section 1981—and for that matter all federal civil rights laws that do not have specific language to the contrary—but-for causation must be alleged and proved. Previously, the Supreme Court required but-for causation only for statutes that use words such as “because,” “because of” or “based on.”
For example, in Gross v. FBL Financial Services, Inc. (2009), the court said that but-for causation was required for disparate treatment claims under the Age Discrimination in Employment Act because the statute prohibits discrimination “because of such individual’s age.” The court said, “The words ‘because of’ mean ‘by reason of: on account of.’ … Thus, the ordinary meaning of the ADEA’s requirement that an employer took adverse action ‘because of’ age is that age was the “reason” that the employer decided to act. To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the “but-for” cause of the employer’s adverse decision.”
Similarly, in University of Texas Southwestern Medical Center v. Nassar (2013), the court found that retaliation claims under Title VII require proof of but-for causation because the statute used the words “because of.” The court observed: “This enactment, like the statute at issue in Gross, makes it unlawful for an employer to take adverse employment action against an employee ‘because’ of certain criteria. Given the lack of any meaningful textual difference between the text in this statute and the one in Gross, the proper conclusion here, as in Gross, is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.”
But never until Comcast did the court say that all civil rights laws are interpreted to require but-for causation unless the text specifies otherwise. There is no doubt that this is a much harder standard to meet than showing that race is a “motivating factor.”
A simple example is illustrative. Imagine a person goes to a hotel to rent a room and the desk clerk says: “Sorry we have no availability. Besides we don’t rent to Black people.” If it is enough to allege that race is a motivating factor, those facts would be enough to withstand a motion to dismiss and for the case to proceed to discovery and ultimately to summary judgment or trial. But if race has to be the but-for cause of the denial of the contract, the plaintiff cannot withstand a motion to dismiss on these facts.
Under the but-for test, it is likely that many potentially meritorious claims will be dismissed at the pleading stage. As Justice Sandra Day O’Connor observed in Price Waterhouse v. Hopkins, a but-for test, at times, “demands the impossible.”
Moreover, the court in Comcast rejected the argument that it should be sufficient to allege in the complaint that race is a motivating factor, even if ultimately the burden of persuasion is on the plaintiff. In Patterson v. McLean Credit Union (1989), the court held that the burden-shifting framework developed under Title VII applies to claims brought under section 1981. This court stated the burden-shifting approach “structured as a ‘sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination,’ should apply to claims of racial discrimination under § 1981.”
Under the burden-shifting framework approved in Patterson, a plaintiff is not required to show but-for causation to establish a prima-facie case. Rather, a plaintiff need only submit evidence that raises an inference of discrimination; it is enough to allege and present a prima-facie case that race was a motivating factor in the refusal to contract. Once a plaintiff does that, the burden shifts to the defendant to submit evidence that it was motivated by race-neutral reasons. Only then is a plaintiff required to negate those reasons.
But the court’s opinion does not discuss, or even mention, Patterson and whether this framework survives its decision in Comcast.
By any measure, the court’s decision in Comcast v. NAAAOM is a loss for plaintiffs and a victory for defendants in civil rights cases. It is not surprising that every major civil rights organization signed on to amicus briefs in favor of NAAAOM, while the Trump administration and the Chamber of Commerce favored Comcast’s position. Civil rights groups are likely in the future to see if Congress will amend Section 1981, as it did before in the Civil Rights Act of 1991, to overcome a restrictive Supreme Court interpretation.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His latest book, We the People: A Progressive Reading of the Constitution for the Twenty-First Century, was published in 2018.