On March 23, 2020, in Comcast Corp. v. National Association of African-American Owned Media, the Supreme Court unanimously held that racial minorities have to allege facts suggesting “but for” causation in order to bring a claim under 42 U.S.C. § 1981 for race discrimination in contracting. This is a devastating blow to would-be civil rights litigants, particularly African Americans. Long marginalized by society due to systemic racism, many African Americans have slim to no protections under federal law and no way to enter essential sectors of public and private life, such as housing, education, healthcare, and even certain job opportunities.
The Rationale of Comcast v. NAAOM
The outcome of this case was fairly predictable, although no less heartbreaking. Justice Gorsuch, delivering the opinion for the court, applied “textbook tort law” to the facts presented in front of the court and saw no need to reverse settled precedent, as the lawyers had not presented a compelling case for change in the law. Even Justice Ginsburg, in a footnote to her concurring opinion, notes that the respondents accept the strict but-for standard in discrimination cases as the “default rul[e],” instead of arguing for its revision altogether.
The facts of the case surrounded the formation of a contract between Entertainment Studios (“ESN”), a media company owned by African American entrepreneur Byron Allen, and Comcast, one of the nation’s largest cable television conglomerates. Comcast refused to create a contract to carry ESN’s channels, “citing lack of demand for ESN’s programming, bandwidth constraints, and its preference for news and sports programming that ESN didn’t offer.” ESN saw these reasons as merely pretextual and filed a complaint alleging that Comcast routinely ostracized “100% African American-owned media companies” and was racially harassing ESN by stringing them along during the application process, with no true intent of forming the contract.
The Court did not decide whether ESN had enough facts to bring a racial discrimination claim under 42 U.S.C. § 1981, leaving that question to be resolved on remand, but it did decide that the Ninth Circuit impermissibly applied the wrong causation standard to the facts. The Ninth Circuit had incorrectly allowed the case to proceed to trial on the basis that ESN had alleged sufficient facts to show that race played “some role” in Comcast’s decision not to form the contract. But the Supreme Court ruled that ESN instead had to show that Comcast would have formed the contract but for the fact that ESN was African-American-owned—a much more difficult standard to meet.
The Practical Reality for African Americans
The Ninth Circuit likely will have no choice but to dismiss the lawsuit on the facts, and set yet another precedent in stone against the vindication of civil rights. Bringing race discrimination lawsuits is one of the few ways that African Americans have to gain equality amidst the rampant racial disparities in every sector of society. Affirmative action by the government, though permissible in very narrow circumstances, is largely an unreliable means for African Americans to achieve equality because of the Equal Protection clause of the Fourteenth Amendment, which prohibits government actors from relying on racial classifications in its decision-making. The government also cannot force private parties to affirmatively act on behalf of racial minorities under the same doctrine. Thus, any impediment to bringing lawsuits is a severe setback to racial equality generally.
Byron Allen, a fairly litigious multi-millionaire, is highly fortunate to be able to file as many of the lawsuits as he did. But most African-Americans do not have the same luxuries. Many minority workers do not file race discrimination suits for a variety of reasons: the heavy burden of proof, arbitration agreements, immigration status, difficulty securing legal representation, and the slow pace of the administrative and judicial process. According to a study conducted by the Center for Public Integrity regarding complaint data from federal, state, and local administrative agencies in 2017, “[r]ace claims are among the most commonly filed and have the lowest rate of success, with just fifteen percent receiving some form of relief.”
Moving Forward
Perhaps what is needed, in light of all these compounding challenges, is a change of values and responsibility rather than merely a change in a causation standard. Racial minorities deserve an opening in industries that have consistently slammed doors in their faces. That opening only comes by a race-conscious recognition of the past instead of colorblindness and an acceptance of responsibility and complicity instead of shifting the burden on minorities to prove that they are worth including in society by continuously bringing lawsuits. Just like in the days of the Civil Rights Movement, the necessary legal and societal changes will occur once people decide that the current situation is intolerable. Rampant racial disparities are intolerable. The heavy burden on African Americans to pull themselves up by their own bootstraps is intolerable. The lack of accountability from government actors is intolerable.
Even though the Supreme Court’s decision in NAAOM v. Comcast did not provide the impetus for such a movement directly, perhaps future legislators, attorneys, and active citizens are the ones destined to bring about this change.