Top Court Orders Tougher Test for Allen’s Comcast Bias Suit (2)

The U.S. Supreme Court ordered reconsideration of a decision to let Byron Allen’s media company sue cable television provider Comcast Corp. for racial discrimination, saying a federal appeals court needs to apply a stricter test to decide if the suit can go forward.

The unanimous ruling is a setback to Entertainment Studios Networks Inc., which blames discrimination for its inability to get its channels onto the carrier’s cable systems. Allen’s company is pressing a similar suit against Charter Communications Inc.

The justices issued four opinions online Monday, and not from the bench, breaking with longstanding tradition because of the coronavirus outbreak. The last time the court had ruled in an argued case without taking the bench was the 2000 Bush v. Gore decision.

Entertainment Studios says it tried for years to get its channels carried by Comcast. The suit alleges that Comcast officials refused to reach a deal, even while expanding offerings of lesser-known, white-owned channels.

At issue was a provision known as Section 1981, a Reconstruction-era law that bars racial discrimination in contracting. Comcast said the appeals court improperly made it easier to sue under that statute than under other civil rights laws.

In letting the suits go forward, the San Francisco-based 9th U.S. Circuit Court of Appeals said Entertainment Studios needed to show only that racial discrimination was a “motivating factor” in the decisions.

Gorsuch Opinion

The Supreme Court said Monday that Section 1981 requires Entertainment Studios to allege in its lawsuit that it would have received a contract had it not been for racial bias. That’s a standard the Supreme Court has applied in other contexts, including claims of age discrimination and retaliation.

Section 1981 “follows the usual rules, not any exception,” Justice Neil Gorsuch wrote for the court. “To prevail, a plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally protected right.”

Comcast says its decision was made for legitimate business reasons.

“We are pleased the Supreme Court unanimously restored certainty on the standard to bring and prove civil rights claims,” the company said in an emailed statement. “The well-established framework that has protected civil rights for decades continues.”

Allen said in an emailed statement that the court “has rendered a ruling that is harmful to the civil rights of millions of Americans.” He added, “This is a very bad day for our country.”

Civil rights advocates said the ruling will make it more difficult for discrimination victims to get their cases into court.

“This ruling weakens our nation’s oldest civil rights statute and may shut the courthouse door on some discrimination victims who, at the complaint stage, may simply be without the full range of evidence needed to meet the court’s tougher standard,” said Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law, in an emailed statement.

Justice Ruth Bader Ginsburg issued a concurring opinion to stress that the court wasn’t deciding an important separate question, whether Section 1981 applies to only to the final contracting decision or also to the discussions that led up it.

“If race indeed accounts for Comcast’s conduct, Comcast should not escape liability for injuries inflicted during the contract-formation process,” Ginsburg wrote.

The case is Comcast v. National Association of African American-Owned Media, 18-1171.

(Updates with Allen’s reaction in 11th paragraph)

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Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Joe Sobczyk at jsobczyk@bloomberg.net

Laurie Asséo, Max Berley

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