Become a Patreon!


Excerpted From: Catherine Tarantino, Contracting Free from Racial Animus: Comcast Corporation V. National Association of African American-owned Media and Entertainment Studios, 15 Duke Journal of Constitutional Law & Public Policy Sidebar 77 (2020)(Supreme Court Commentary) (145 Footnotes) (Full Document)


comcastThe United States has come a long way in promoting racial equality since the 1866 and 1964 Civil Rights Acts, but racial animus still plays an impermissible role in many contracting and employment decisions. Comcast Corporation v. National Association of African American-Owned Media and Entertainment Studios offers the Supreme Court the opportunity to decide which causal standard applies to claims alleging racial bias in contracting under 42 U.S.C. § 1981. Specifically, the Court will decide whether § 1981 requires a plaintiff to demonstrate that racial animus was the but-for cause or simply a motivating factor in the defendant's refusal to contract. Section 1981, originally enacted under Section One of the Civil Rights Act of 1866, guarantees that all individuals have the “same right” to contract as white citizens. While the Court has determined the applicable causal standards under similarly operating statutes, such as Title VII and the Age Discrimination in Employment Act (ADEA), it has never squarely addressed the issue regarding § 1981 claims.

This Commentary argues that 42 U.S.C. § 1981 requires a motivating factor, rather than a but-for causal standard. A but-for causal standard presents an extremely high burden to plaintiffs, especially at the pleading stage where defendants often have sole access to potentially incriminating evidence. This causal burden impacts those who do not fall under Title VII's definition of “employee,” and rely on § 1981 as their avenue for redress. By denying a remedy to such individuals when they confront discriminatory contracting practices, § 1981's promise of granting people of color the “same right” to contract as white individuals is unfulfilled. In contrast, a motivating-factor causal standard would make it easier for plaintiffs to bring successful § 1981 claims and vindicate their right to contract free of racial animus. Accordingly, the Supreme Court should affirm the Ninth Circuit's holding and interpret § 1981 to require a motivating-factor standard.

[. . .]

Under § 1981, ESN should be required to show that racial animus was a motivating-factor, not the but-for cause, of Contract's refusal to carry their channels. Holding plaintiffs like ESN to a but-for causal standard would impact minority businesses and employees, giving them the impossible task of proving that racial animus was the sole cause for refusal to contract before proceeding to discovery. Without access to important documents in the defendant's possession, these minority businesses and employees are left without remedy and unjustly denied access to the courts. Holding ESN to the high but-for causal standard would unjustly deny them access to the Court. This result is unjust and goes against § 1981's guarantee that people of color have the same right to contract as white individuals. Therefore, the Supreme Court should affirm the Ninth Circuit's ruling and hold that § 1981 requires a motivating factor, and not a but-for causal standard.

J.D. Candidate, Duke University School of Law, Class of 2021.

Become a Patreon!