‘But-for’ causation shouldn’t be required under right-to-contract statute

Originally included as part of the Civil Rights Act of 1866, enacted to protect newly freed slaves in their business pursuits, 42 U.S.C. Section 1981 guarantees everyone the "same right" to contract "as is enjoyed by white citizens." This includes all "benefits, privileges, terms, and conditions" of making and enforcing contracts. The law protects employees, separately from Title VII of the 1964 Civil Rights Act, as well as anyone who suffers discrimination on the basis of race in any part of an actual or potential contractual arrangement.

On Nov. 13, Erwin Chemerinsky, dean of Berkeley Law (and before that, UC Irvine), argued before the U.S. Supreme Court in a case that could greatly impact the ability of plaintiffs to bring section 1981 claims. The high court granted certiorari on what began as a narrow question: Whether a claim of race discrimination under Section 1981 fails in the absence of but-for causation. The odd procedural path the case took to arrive at the Supreme Court's doorstep, however, made the question less than easy to answer.

In the case, Comcast Corp. v. National Ass. of African American-Owned Media, 18-1171, African-American comedian Byron Allen sought to have Comcast carry television stations owned by his 100% African-American-owned production company. Comcast systematically denied his requests over several years, carrying Caucasian-owned channels with allegedly no legitimate business justification for its refusal. According to Allen's complaint, a Comcast executive told his company they did not want more successful African-American television executives.

Comcast's motions to dismiss Allen's complaint and amended complaints were granted. But the 9th U.S. Circuit Court of Appeals reversed, holding that because Allen had plausibly alleged that discriminatory intent was a "factor" in Comcast's refusal to contract, he had stated a claim, despite not alleging race was the but-for cause of Comcast's decision. While the 9th Circuit was technically ruling on the sufficiency of a complaint, its opinion, and the question the Supreme Court agreed to review, addressed the ultimate causation standard.

In advocating for a less strenuous "motivating factor" standard for pleading a complaint, Chemerinsky tried to thread a needle. As an advocate known for preserving constitutional rights, particularly for plaintiffs who have suffered discrimination, he knows precedential effect this case could have to plaintiffs' chances of successfully recovering for discrimination in the future.

But despite Chemerinsky vociferously arguing the laws should be "clear that motivating factor is sufficient" to allege a racial discrimination claim (Tr. at 47), he agreed the plaintiff has the ultimate "burden of persuasion" to show the contract would have been issued "but for race," (Tr. 37.) and also argued Allen's complaint met the but-for standard.

At first blush, this appears problematic series of contentions and admissions. And at second and third blush it remains complex and confusing. As Chemerinsky stated at the outset of his presentation: Section 1981 does not use causal language and any harmful influence race plays necessarily and obviously means the plaintiff did not enjoy the "same right." Despite this, because of the burden shifting applied to cases involving motivating factor discrimination, a plaintiff essentially ends up proving but-for cause in rebutting a defendant's alternative explanations for its conduct.

During oral argument, the justices skipped among several separate topics: the applicable causation standard for a section 1981 claim to survive a Rule 12(b)(6) motion, the "ultimate" causation standard at trial for such claims, and whether or what burden-shifting applied during the course of the litigation. They swung from wondering whether the two standards amounted to a distinction without a difference to expressing difficulty adopting a pleading standard different from the ultimate causation standard.

There can be more than one but-for cause, they lamented, harkening back to first-year tort class and Summers v. Tice. Plaintiffs are not expected to prove their claims, anticipate defenses, nor "get into the minds" of defendants pre-discovery. Even the more conservative Justices Neil Gorsuch and Brett Kavanaugh noted that courts are hesitant to throw out discrimination complaints, regardless of the causation standard used to evaluate them, describing the existing burden on plaintiffs as a "pretty low bar." (Tr. at 63.) This offers hope that the court's forthcoming opinion will emphasize this standard, rather than issuing one that makes surviving a Rule 12(b)(6) motion on these claims more difficult. But a ruling that explicitly states but-for causation is required for a Section 1981 claim, whether limited to the ultimate merits or applied at the pleading stage, risks widespread impact on anyone who suffers from racial discrimination. 