The media giant Comcast touts diversity and inclusion as “a central element of our credo and our DNA.” So why is it asking the U.S. Supreme Court to hollow out a 153-year-old law against racial discrimination?
Byron Allen, a black businessman, is suing Comcast for refusing to carry channels he owns. Allen alleges that a Comcast executive said, “We’re not trying to create any more Bob Johnsons,” a reference to the co-founder of BET who became a billionaire.
Pointing also to Comcast’s launch of over 80 white-owned channels while telling him it lacked capacity for his content, Allen alleges violation of the Civil Rights Act of 1866. That law prohibits discrimination in contracting, covering everything from employment to banking to service in hotels and restaurants.
Instead of defending itself with evidence, Comcast is pushing a destructive legal argument to get the suit dismissed. The company asserts that under the 1866 Act, a plaintiff must prove race was a decisive “but-for” cause—not just a motivating factor—of the defendant’s conduct.
In other words, Comcast argues it was allowed to discriminate against Allen based on race as long as it had independent reasons that would have led it to refuse to contract with him. The company also says plaintiffs must allege but-for causation at the start of a lawsuit, before they’ve gone through pretrial fact-finding. President Donald Trump’s Justice Department is backing Comcast.
Potential Body Blow to Civil Rights
A ruling for Comcast would be a body blow to civil rights law. It would strip employees and consumers of redress in all but the most blatant cases of contract discrimination.
Bad actors often have mixed motives. An employer might terminate an employee because of both the person’s race and their performance. The poor performance shouldn’t let the employer off the hook, especially when studies show employers scrutinize black workers more closely than white workers.
Moreover, when people first file a lawsuit, they rarely know enough to establish but-for causation. Most of the motive evidence resides in the defendant’s head or control. That’s why subpoenas and depositions are so important. Here, there appears to be reason to dig. Revolt TV owner Sean “Diddy” Combs just came out critiquing Comcast for failing to distribute his channel and using it to create “the illusion of economic inclusion.”
Unfortunately, the Supreme Court has repeatedly raised the bar on civil rights plaintiffs. In two 5-4 decisions in 2013, the court’s conservative majority applied the higher but-for standard in workplace retaliation cases and made it harder to sue employers for racial harassment by supervisors. In 2009, the same majority raised the standard even for filing a lawsuit, leading to a much higher dismissal rate in cases brought by individuals.
Civil Rights at Stake
The Civil Rights Act of 1866 requires that all people have the “same right” to make contracts as white people. This logically means race should play no role. If you refuse to hire me because I’m brown-skinned—even if you have other reasons, even if I can’t prove you would hire me if I were white—you have treated me differently due to race and violated my rights.
History backs up this idea. After the Civil War, the Thirteenth Amendment outlawed slavery, but that alone couldn’t create an equal society. The amendment therefore also gave Congress authority to write laws to eradicate, in the Supreme Court’s words, “all badges and incidents of slavery.”
Southern states immediately passed infamous Black Codes and private actors conspired to entrench white supremacy. The Civil Rights Act of 1866 took direct aim at these ills. Its stated purpose was to “break down all discrimination between black men and white men” in economic activities, including entering contracts.
Discrimination lies at the heart of this racial inequality. It persists in employment, where black people without criminal records are less likely to get job callbacks than white applicants with them; in banking, where black entrepreneurs have a harder time getting financing ; in restaurant service, where black customers have the police called on them or are forced to prepay for their food; and in housing, where renters of color are turned away from available units and must contend with #AirbnbWhileBlack.
We will never root out pervasive bias without strong legal protections. The Supreme Court should rule against Comcast. If it does not, the public must demand that Congress quickly restore the 1866 Act.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Chiraag Bains is the director of legal strategies at Dēmos, a think-and-do tank dedicated to building a just, inclusive, multiracial democracy. From 2010 to 2017, Bains served in the Justice Department’s Civil Rights Division. As senior counsel to the assistant attorney general, he supervised matters from the Special Litigation, Voting, Housing, and Appellate Sections, and helped lead DOJ’s work on criminal justice reform.