• Daemie M. Kim

Well... it's official. Section 1981 race discrimination claims require "but for" causation.

Plaintiffs' counsel beware. When determining whether to file a race discrimination claim under 42 U.S.C. § 1981 (Section 1981), 42 U.S.C. § 2000e-2 (Title VII), both, neither, some state law, etc., there's now "officially" a new consideration. By opinion dated March 23, 2020, the Supreme Court of the United States (SCOTUS) decided Comcast Corp. v. National Association of African American-Owned Media, a case that came up through our little cowboy corner of the world: the Ninth Circuit.

The short story: Your Section 1981 lawsuit needs to allege and prove that the plaintiff would not have lost a legally protected right "but for" race.

In the Comcast case, the proper question would have been whether Comcast would have contracted with National but for race. National alleged that Comcast engaged in racial harassment throughout contract formation and that race was a motivating factor in Comcast's decision not to contract with National. The Ninth Circuit held that race had to play "some role" in Comcast's decision, but -- no. As it turns out, that was incorrect. Instead, SCOTUS held that a prima facie Section 1981 claim must plead "but for" causation -- pleading "motivating factor" is not enough.

In its published opinion, SCOTUS failed to address one of Comcast's arguments -- whether the final decision is the only thing the courts should analyze in a Section 1981 claim. The notorious RBG (who is not a fan* of strict "but for" causation in discrimination cases, but recognizes that it's unfortunately the current state of the law) concurred in the Court's opinion in part, and concurred in the judgment, but wrote separately to warn that people should not think they can engage in racial discrimination all the way up until it's time to sign. To take that view would be inconsistent with the intent of the statute and would make Section 1981 "an empty promise without equal opportunities to present or receive offers and negotiate over terms." 589 U.S. __, 2 (2020). RBG noted, for example, that a company cannot "reimburs[e] expenses for white interviewees but requir[e] black applicants to pay their own way." Id.

If you want to read the full-text, you'll find it here.

*Start at page 28, which is RBG's dissenting opinion.


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