There have been laws against racial discrimination since just after the Civil War. But when it comes to enforcing those laws, the battle rages on. That fight has made its way to the United States Supreme Court in Comcast Corp. v. National Association of African American-Owned Media. The way the Court rules could change the future of discrimination cases nationwide.

The Nation’s Oldest Civil Rights Law

Title VII of the Civil Rights Act became law in 1965, but it wasn’t the first time the legislature passed a law to protect the nation’s disadvantaged residents. 42 U.S.C. § 1981 — referred to by the courts as Section 1981 — was passed in the fallout of the Civil War in 1877. It says:

“All persons . . . shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .”

It was designed to protect African American residents and business owners from racial discrimination as they began to exercise their rights as citizens. When their commercial efforts are burdened by racial bias and bigotry, they can use the federal courts to get equal access under the law.

Racial Discrimination in Cable Broadcast Contracts

Section 1981 is the law Byron Allen fell back on when he was shut out of commercial contracts in his entertainment businesses. Allen owned and operated the Entertainment Studios, a television and motion picture company operating 7 channels including JusticeCentral.TV, Pets.TV, Comedy.TV and Cars.TV. His shows have been distributed through Verizon, AT&T, and DirecTV, but never with Comcast. Allen filed a federal Section 1981 lawsuit claiming that Comcast’s refusal to enter a contract with Entertainment Studios was due to racial discrimination. In support of that claim, his complaint alleged Comcast’s:

• Expressions of interest followed by repeated refusals to contract
• Suggestions of how to secure support followed by reversals of positions after Entertainment Studios had undertaken the time and expense of those steps
• Exclusion of Entertainment Studios even when taking on all 500 networks by its main competitors
• Carriage of “lesser-known, white-owned” networks while claiming it had no bandwidth to carry Entertainment Studios.

Comcast didn’t just respond to the complaint, it filed an immediate Motion to Dismiss the lawsuit. It said that it had legitimate business reasons for refusing the contracts with Entertainment Studios. It also said under federal court rules there was no way Allen could make a case for racial discrimination because nothing he claimed showed a “but for” connection between racial bias and the loss of the contract.

The Two Standards for Proving Racial Discrimination

Comcast’s motion, and its appeal, depended on two previous Supreme Court cases analyzing different civil rights laws: the Age Discrimination in Employment Act (ADEA) and retaliation claims brought under Title VII. These cases said that by default, these laws require that the offending behavior would not have occurred “but for” racial bias or bigotry.

The Ninth Circuit Court, which heard the case, said Section 1981 worked differently. It said that both the other laws contained language that the conduct was “because of” discrimination. There is no “because” in Section 1981. The appellate court said that meant instead of alleging “but for causation”, all Allen had to do was allege facts that show race was a motivating factor in Entertainment Studios’ disparate treatment. The appeals court said it wasn’t the plaintiff’s job to tell what was inside the mind of Comcast’s vice president of programming. As long as the facts alleged appeared to support that race was part of the equation, that was enough for the case to go through to the discovery phase.

The Supreme Court Hears the Arguments on Racial Bias in Negotiations

Comcast wasn’t satisfied with that answer. It appealed the decision to the U.S. Supreme Court, which granted certiorari to review the case. On November 13, 2019, the matter was heard by the U.S. Supreme Court. The oral argument came down to technical legal details and that same central theme: whether racial bias needed to be the direct cause of the lost business, or just one factor among many.

Unlike the Ninth Circuit Court, the Supreme Court Justices’ questions centered on the difference between pleadings and proof. The Ninth Circuit’s opinion seemed to suggest the motivating factor standard would apply all the way through the case. But by the end of the oral arguments, it seemed that everyone — even Mr. Allen’s attorney — agreed that when the time came for trial he would have to show that same “but for” connection between discrimination and action. But Comcast said that same standard should apply to the initial pleadings. Mr. Allen’s attorney said that level of proof should come later, after the attorneys had their chance to develop their case through discovery.

As with any Supreme Court decision, it is hard to know what the Justices will do even by reading the oral arguments. The Court has until June 2020 to deliberate and write its opinion. If the court determines that a plaintiff can file a complaint based on a motivating factor, it will make it easier for the victims of racial discrimination to make their cases and take them to court. If it rules in favor of a “but for causation” standard, plaintiffs will often have a hard time putting together the evidence they need without access to the defendant’s records, or their thoughts.

At Eisenberg & Baum, we know how important it is to develop a strong case for our clients. Our employment discrimination attorneys, help employees and business owners file their claims under Title VII, state civil rights laws, and Section 1981. We stay on top of changes in the law, so that you know we are using the best strategies against the discrimination you face at work and in your contracts. If you have been the victim racial discrimination, contact us. We’ll meet with you and help create a strategy that protects you and your business.