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DOJ to Ask High Court to Raise Standard for Proving Racial Bias

Nov. 13, 2019, 11:19 AM

The Trump administration will back Comcast Corp. in a racial bias case before the U.S. Supreme Court on Nov. 13 and argue for a ruling that would effectively make it harder for many plaintiffs to prove discrimination in employment, housing, and other contexts.

The case, which is poised to be one of the most consequential rulings this term for employers and workers, stems from a business dispute between the cable giant and media mogul Byron Allen’s Entertainment Studios Inc.

The justices will determine the standard of proof a plaintiff must meet in order to prove allegations of illegal racial discrimination—namely, whether the discrimination must be the decisive factor or cause of an adverse action, or whether it can be merely one of multiple motivating factors. The high court will tackle the same issue in a January case about age discrimination against federal government workers.

In practical terms, the court’s decision in Comcast Corp. v. National Association of African American-Owned Media will have far-reaching effects in employment and in the economic sphere. It could make a class of potential racial bias claims either newly viable or much more likely to be summarily dismissed by federal courts.

A decision in favor of Comcast’s position, for example, would make a racial discrimination case much harder to win for a plaintiff whose argument rests on circumstantial evidence, as opposed to direct proof—such as when a supervisor is alleged to have directed a slur at an employee shortly before taking a negative action against them.

“This case is really of great significance; it’s a really important area that business owners, especially small businesses, are very concerned about,” said Karen Harned, executive director of the Small Business Legal Center at the National Federation of Independent Business.

Allen, who is black, alleges that Comcast refused to carry multiple independent TV networks operated by his company because of racial discrimination. He’s arguing he shouldn’t have to plead or prove that race was the sole reason, or even the central cause, of Comcast’s adverse decisions against him. In his view, the law requires him only to prove that race was a motivating factor in the company’s decisions.

The Justice Department, which requested to participate in the Nov. 13 oral arguments, is arguing along with Comcast that a Reconstruction-era law that was intended to give black Americans the same citizenship rights as whites requires complainants to prove that they wouldn’t have suffered harm “but for” the defendant’s racial discrimination.

In other words, under the DOJ’s argument, a defendant could avoid liability for race discrimination under Section 1981 of the Civil Rights Act of 1866 if they can show they would’ve taken the same course of action—such as declining to hire someone—based on other, race-neutral reasons.

Under the other central anti-bias law, Title VII of the Civil Rights Act of 1964, plaintiffs need only show that illegal discrimination was one factor in an adverse action against them, rather than being the decisive cause.

Many large corporations and business groups, including NFIB and the Chamber of Commerce, back Comcast and the Trump administration’s interpretation of Section 1981, while civil rights groups like the NAACP Legal Defense and Educational Fund, argue for the more lenient standard used under Title VII.

Businesses fear that using a standard where racial bias need be only a motivating factor could encourage plaintiffs’ attorneys to “manipulate the law” to get businesses and other defendants to offer a settlement, Harned said.

“If we go from a standard of discrimination being the cause of an adverse action to an employee, which is very easy to understand, to ‘well, it could’ve been a factor,’ you’re going to see more and more shakedown lawsuits,” Harned said. “I’m afraid the dam is going to break, to be frank.”

W. Burlette Carter, a professor at George Washington University Law School, filed a brief in the case arguing for the “motivating factor” standard.

“I would say that, far more often, people who have legitimate concerns about discrimination walk away quietly because they don’t think they can take the company on,” Carter said. “We are not talking about ordinary civil offenses here like slip and fall; we are talking about discrimination, and, in this case, a type of discrimination that this country fought a civil war over.”

“It has no place in the workplace,” she said.

Competing Tests

Section 1981 is part of the country’s oldest civil rights law, passed shortly after the Civil War to address economic racial discrimination. It grants all Americans the same right “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.”

The Supreme Court has interpreted the law as applying to both government-sponsored racial discrimination and to discrimination in the private sector. It’s become an important tool for claims of bias in the economic sphere, including in employment, banking, real estate, and in business transactions between corporations or individuals.

The high court agreed to hear Comcast’s appeal of a decision in the U.S. Court of Appeals for the Ninth Circuit, which allowed the case to proceed. The appellate judges haven’t yet ruled on the merits of Allen’s claim, but said he needs only to allege and prove that racial discrimination was a motivating factor in Comcast’s decisions in order to win the case.

In its appeal, Comcast relies partly on the high court’s language in a 2013 discrimination case interpreting Title VII, arguing that the “but-for” causation test is the default standard for any tort claim unless Congress makes clear a different interpretation in the text of a statute.

In the 2013 ruling about standards of proof under Title VII, the Supreme Court held “that but-for causation ‘is the background against which Congress legislate[s],’ providing ‘the default rule it is presumed to have incorporated, absent an indication to the contrary in the statute itself,’” Comcast said in its brief to the high court.

The Supreme Court has also held that but-for causation is required to prove bias claims under the Age Discrimination in Employment Act, and specifically for retaliation claims under Title VII.

Given the high court’s language about the default rule, but-for causation should be the standard for Section 1981 claims absent a specific directive otherwise from Congress, according to Comcast.

But Allen and civil rights groups who’ve filed briefs in the case argued that Congress couldn’t have meant to require ‘but-for’ proof under the 1866 law because the general understanding of that legal concept wasn’t developed until later.

“The standard of ‘but-for’ causation didn’t emerge until later and it did so in the context of employee physical injuries,” Carter said.

The Ninth Circuit agreed with Allen’s additional arguments that Section 1981 itself does indicate that Congress meant to use something other than but-for causation because a plaintiff can’t enjoy the “same right” as a white citizen—per the statute’s language—if discrimination plays any role at all in an adverse decision.

High-Stakes Argument

Harned said another reason businesses weighed in on the issue is because the but-for test is seen as more straightforward. A test that considers contributing factors is both harder for courts to administer and for businesses to comply with, she said.

“This isn’t about protecting bad actors, if people are discriminating that needs to stop; but there are a lot of plaintiffs’ attorneys who’ll manipulate the law and go after employers who don’t have a lot of resources,” Harned said. “Plaintiffs’ attorneys will rely on 1981 because they’ll see they now have a real lax standard that’ll work in their favor in terms of at least getting something to trial and getting a settlement.”

Michael S. Moore, a professor at the University of Illinois College of Law who has studied the nature of causation and moral and legal responsibility in his legal scholarship, said the but-for test “really doesn’t work” in cases where there are multiple motivating factors for a decision or multiple causes for an action.

“You can have two people each sufficiently burning down a house, and neither is necessary,” yet both are a cause of the harm, Moore said. Under the test the government and Comcast support, it would be difficult to prove either defendant’s liability—in other words, each could argue in defense that the house would’ve burned down anyway, without their individual contributing action.

“But the idea that neither is liable is preposterous and no court has really adopted” or applied the analysis in that manner, Moore said.

“If you really want the Civil Rights Act and Section 1981 to do what it was supposed to do in 1866, then it should be enough to require a plaintiff to show that race was a substantial reason” for an adverse decision, Moore said.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

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