The U.S. Supreme Court’s March 23 decision in Comcast v. National Association of African American-Owned Media, raises the bar for workers and consumers who sue companies over racial discrimination. The ruling is the product of a quiet revolution in anti-discrimination law.
The case began when media mogul Byron Allen, who is African American, sued Comcast Corp. for refusing to carry content from seven television channels he owns. Allen claimed race discrimination, pointing to a discriminatory statement allegedly made by a Comcast executive and the fact that Comcast launched over 80 white-owned channels while telling Allen it lacked capacity to carry his content.
Racial discrimination in contracting is expressly prohibited by the Civil Rights Act of 1866. Passed in the aftermath of the Civil War, the Act mandates that all persons “shall have the same right … to make and enforce contracts … as is enjoyed by white citizens.” This protection applies to contracts of all sorts—for employment, housing, lending, sales, service in restaurants, and more.
The question before the Supreme Court was whether a plaintiff suing under this law has to establish that race was a motivating factor—that it contributed to the defendant’s conduct—or whether they have to prove race was a decisive “but-for” cause—that the defendant would have made a different decision if, hypothetically, the plaintiff had been white. As I warned in December, the answer to this question could be severe for people of color in America.
The Court’s Decision
The nine justices ruled unanimously for Comcast, concluding that plaintiffs must meet the higher but-for standard. Writing for the court, Justice Neil Gorsuch deemed but-for causation the default rule for federal legislation and read the 1866’s text as “suggestive” of a but-for requirement. Gorsuch dismissed the motivating-factor test as a modern judicial invention that had no application to the 1866 Act.
The decision is a major setback for civil rights. The but-for standard is more demanding, harder to prove, and more tolerant of racial bias than the motivating-factor test.
Under this rule, Comcast could have told Allen, with no fear of liability, “We don’t like that you’re black, and your race did play a role in our decision, but even if you were white, we wouldn’t have worked with you.” Of course, bad actors rarely reveal their bias. It’s quite common, however, for them to rely on pretexts like lack of professionalism, poor judgment, or just being “not the right fit.”
A Quiet Revolution
That the court sided with Comcast 9-0 might suggest this was an easy case. In fact, the unanimous outcome demonstrates how dramatically the law has turned away from protecting civil rights in recent years.
In 1989, the Supreme Court decided the seminal case Price Waterhouse v. Hopkins concerning Title VII of the Civil Rights Act of 1964, which prohibits adverse employment actions taken “because of” race, sex, national origin, or religion.
Recognizing that decisions like firing or demoting a person often have both legitimate and discriminatory reasons—or mixed motives, in the parlance of the law—the Supreme Court held 6-3 that Title VII’s “because of” language required a plaintiff to prove only that the defendant took their race, sex, or other protected trait into account. Plaintiffs could meet their burden by showing that the trait was a motivating factor.
Six justices explicitly rejected the position of dissenting Justice Anthony Kennedy that “because of” required the higher but-for causation standard. Soon thereafter, Congress expressly codified the motivating-factor test into Title VII law.
Fast-forward 20 years, and things began to change rapidly. In 2009, the Supreme Court in Gross v. FBL Financial Services made it harder to prove employer misconduct using the Age Discrimination in Employment Act (ADEA). A new conservative majority ruled 5-4 that “because of” in this context meant that age was the but-for cause. The court effectively dismissed the Price Waterhouse precedent, questioning whether the 1989 decision was “doctrinally sound” and intimating that it would have decided Price Waterhouse differently.
In 2014, the same five-Justice majority ruled in University of Texas Southwestern Medical Center v. Nassar that Title VII retaliation claims—claims that an employer punished an employee “because” the employee reported discrimination—also required proof of but-for causation.
Remarkably, the court relied on Gross, the ADEA case, not Price Waterhouse—even though the prohibition on retaliation comes from the same statute that Price Waterhourse interpreted (Title VII), uses the same “because” language, and is aimed at combatting discrimination. Justice Kennedy wrote for the court. His dissenting opinion in Price Waterhouse became the law.
Having all but disavowed the motivating-factor test from 30 years ago, in Comcast the court applied the heightened but-for standard to the 1866 Civil Rights Act, which doesn’t even include the “because” language. The result is that a law passed after the Civil War to “break down all discrimination between black men and white men” will now provide a fraction of the protection Congress intended.
More Changes Could Be on the Way
More legal moves that undermine anti-discrimination law may be on the horizon. The Comcast ruling threatens to unravel a legal precedent set in 1975 that allows individuals to sue over contract discrimination in the first place. Justice Gorsuch wrote that the precedent came in an era when the court was more willing to imply such rights, and noted that, “Nothing in the Act specifically authorizes private lawsuits to enforce the right to contract.”
Gorsuch also declined to decide whether the 1866 Act applies only to the final decision of whether to contract or also to the process leading up to that decision.
As anyone who has applied for a job, inquired about vacancy at a hotel, or entered a restaurant can tell you, how you’re treated during the contracting process matters. In fact, Justice Ginsburg wrote a separate concurrence in Comcast to explain that the Act would be an “empty promise” if a lender could demand more reference letters from black applicants than from white applicants or if an employer could reimburse expenses for white but not black interviewees. And yet Gorsuch left the question for another day.
Congress Can Fix This
The Comcast ruling unduly narrows the 1866 Civil Rights Act, making contract discrimination much harder to prove. And the Supreme Court may not be finished restricting anti-discrimination law.
If there’s hope for victims of racial bias, however, it’s that Congress has the final say over the meaning of its statutes. The public should demand that Congress amend the law to prohibit any reliance on race in contracting decisions, so that the Civil Rights Act of 1866 can serve its intended purpose of stamping out discrimination.
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.