All Things Being Equal, Does Race Make A Difference?: Racial Discrimination Under Section 1981
In Comcast Corp. v. National Association of African American-Owned Media, the United States Supreme Court settled the score on what standard of proof is required for racial discrimination cases in the centuries old catchall legal protection for freed slaves.
The Facts, Briefly.
Entertainment Studios Network (ESN), an African-American-owned television network operator, sought to have cable television conglomerate Comcast Corporation carry its channels. Comcast refused, citing lack of programming demand, bandwidth constraints, and a preference for programming not offered by ESN. ESN and the National Association of African American-Owned Media (collectively, ESN) sued, alleging that Comcast’s behavior violated 42 U. S. C. §1981.
Section 1981 prohibits intentional racial discrimination in the making and enforcement of private contracts, including employment contracts. It guarantees “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” The term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
The Decisions By Lower Courts
The District Court dismissed the complaint for failing plausibly to show that, but for racial animus, Comcast would have contracted with ESN. The Ninth Circuit, in which this decision originated, reversed, holding that ESN needed only to plead facts plausibly showing that race played “some role” or “any role” in the defendant’s decision making process and that, under this more forgiving causation standard, ESN had pleaded a viable claim.
Note that the Eleventh Circuit, in which Georgia is located, interpreted this section in the same manner by using the same requirements of proof, and presenting the same analytical framework, as Title VII.
All Wrong, Declares SCOTUS
SCOTUS ruled that a §1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury, and that burden remains constant over the life of the lawsuit. First, the statute’s text requires this on plain reading of the language and in comparison with other similar text and SCOTUS precedent. Second, when the motivating factor test was added to Title VII, congress also amended §1981 without changing the standards of proof. Third, there is no authority to apply a lesser standard at the Motion to Dismiss stage than would be applied later in the litigation.
Harder for Employees; Easier For Employers
So what does this all mean in everyday human resource management speak? Given that persons alleging racial discrimination can elect to proceed under Title VII or §1981, pros and cons are to be weighed. Title VII has some downsides for the plaintiff including a strict 180 statute of limitations and an equally strict requirement to exhaust administrative remedies at the EEOC, which §1981 does not have. But, thanks to this ruling, §1981 has a downside of its own with the higher standard of proof. Thus, all in all, the plaintiff’s favorable options were further winnowed, giving a defendant employer, a slight edge.
Also, the Eleventh Circuit had held that a complete “mixed motive defense” and a “same decision defense” is available in actions brought pursuant to §1981 whereby a defendant may defeat a claim for damages and reinstatement but not liability by showing that it would have made the same decision even if it had not take the plaintiff’s race into account. Under the but for standard now applicable to §1981, liability would indeed be defeated; either the employer acted because of race or it did not. The defendant employer is two for two on its gains by this new ruling.
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