Bloomberg Law
March 24, 2020, 2:32 PMUpdated: March 24, 2020, 8:13 PM

Race Bias Harder to Prove Under High Court’s Comcast Ruling (1)

Hassan A. Kanu
Hassan A. Kanu
Legal Reporter

Plaintiffs suing for race discrimination under a post-Civil War law must meet a stricter standard to prove their claims after the U.S. Supreme Court unanimously ordered a lower court to reconsider media mogul Byron Allen’s race bias lawsuit against Comcast Corp.

Known as the “but-for” test, the standard requires plaintiffs to prove that race bias was the central cause, as opposed to a motivating factor, of an action they’re challenging. They must meet that burden to get their cases heard by a jury and to ultimately prove that a defendant is liable. The Trump administration weighed in on the case, arguing in favor of Comcast and the stricter standard.

The higher burden of proof will apply in all future employment, contracting, and other cases alleging race discrimination under Section 1981 of the Civil Rights Act of 1866, the law passed to guarantee equal rights to former slaves and black Americans. Courts previously had been split on the issue.

That same standard already is used in workplace retaliation and private-sector age discrimination cases. In a separate case this term, the high court is considering whether it also applies to age bias cases that are brought by federal government workers.

Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund Inc., said the Comcast decision is “limiting” for victims of discrimination because they’re often “in the least advantageous position to know” or possess evidence of the motivation behind discriminatory decisions, and how they were made. Raising the bar in terms of the factual allegations a plaintiff must make before they have an opportunity to gather evidence, and for proving those allegations, therefore disadvantages victims of race bias, she said.

A Comcast spokeswoman said in a Monday email that the ruling “restored certainty on the standard to bring and prove civil rights claims,” and that the nation’s civil rights laws “remain the same as before the case was filed.”

“If you represent defendants in litigation, I suppose that is true,” Ifill countered. “But if you represent plaintiffs who are the victims of discrimination, who will now be held to this burden the Supreme Court put forward, you do regard it as a problem, you do regard it as narrowing.”

Business groups have generally lauded the ruling.

“For the small-business owners I represent, this was a good decision,” said Karen Harned, executive director of the National Federation for Independent Business’ small business legal center. Businesses were concerned that a more lenient standard would “open the floodgates” to frivolous litigation, Harned said.

The U.S. Chamber of Commerce, the largest American business and lobbying group, filed a brief in the case in support of Comcast and the stricter burden. Representatives with the organization’s litigation arm didn’t respond to requests for comment.

Allen’s case now heads back to the U.S. Court of Appeals for the Ninth Circuit, which will use the but-for standard to reconsider whether race bias was behind Comcast’s refusal to host channels produced by his company, Entertainment Studios Networks Inc.

Court: Traditional Standard Applies

The court noted its own precedential rulings which held that the “default” test in civil lawsuits like Allen’s—as opposed to criminal proceedings—is that the the injury to a plaintiff “would not have occurred ‘but for’ the defendant’s unlawful conduct.”

Allen’s attorneys argued that Section 1981 is an exception from the traditional standard.

“We don’t doubt that most rules bear their exceptions,” Justice Neil Gorsuch wrote for the court. “But, taken collectively, clues from the statute’s text, its history, and our precedent persuade us that §1981 follows the general rule.”

The law’s text guarantees each person the “same is enjoyed by white citizens,” which directs attention “to the counterfactual—what would have happened if the plaintiff had been white?” the court said. That question “fits naturally with the ordinary rule that a plaintiff must prove but-for causation,” Gorsuch wrote.

The court added that the structure and history of the statute doesn’t specifically authorize private lawsuits to enforce the right to contract, noting that the high court itself “created a judicially implied private right of action” for the first time in 1975.

The high court’s analysis is problematic, W. Burlette Carter, a professor at George Washington University Law School, told Bloomberg Law in a March 24 e-mail. Carter filed a brief in the case arguing that the less stringent “motivating factor” standard is appropriate.

“To support what it called ‘textualism,’ the Court used relatively modern word meanings” to interpret the statute, “and not the meanings in 1866,” she said. Recognizing but-for causation as a default rule is also an issue, according to Carter.

“There is no reliable historical evidence suggesting that ‘but for’ causation, in the narrow sense that Comcast argued and that Courts later recognized, was the default tort concept in 1866,” she said. “Torts itself was barely a concept.”

Ginsburg wrote a separate concurrence noting that Section 1981 was written to outlaw race discrimination in both the contract-formation process and in the final result. Comcast and the Trump administration had argued that the law only outlaws discrimination in the final outcome, like a contract, as opposed to things like subjecting someone to extra requirements during early stages in the process.

That “freeze-frame approach” invites error, Ginsburg said.

Advocates: Allen Has a Shot on Remand

“Ginsburg’s concurrence suggests that a plaintiff can succeed by showing racial bias affected early processes, like the application, and doesn’t necessarily need to prove the trail [of bias] all the way up to the final decision on the contract,” Carter told Bloomberg Law.

Ifill said the separate opinion seems aimed at the possibility that a defendant could soon seek to advance the argument before the Supreme Court that Section 1981 doesn’t cover discrimination in contract-formation.

“I think we should take note of the fact that she felt the need to say it,” Iffill said, calling the Ginsburg’s concurrence “a red flag” that victims of discrimination and advocates should heed.

Carter and Ifill said they believe Allen should be able to proceed to trial based on his current complaint and allegations.

The case is Comcast v. Nat’l Ass’n of African Am.-Owned Media, U.S., No. 18-1171, opinion 3/23/20.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Hassan A. Kanu in Washington at

To contact the editors responsible for this story: Jay-Anne B. Casuga at; Martha Mueller Neff at