DOJ, Chamber of Commerce Back Comcast in SCOTUS Discrimination Suit
The 9th U.S. Circuit Court of Appeals decision to remand a lower court decision throwing out claims of racial discrimination in Comcast's programming decisions (see 1811190023) conflicts with the plain meaning of Section 1981 of federal anti-discrimination law. That's the…
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argument of docket 18-1171 amicus briefs filed Thursday with the Supreme Court on behalf of Comcast. Section 1981, saying all people have the same rights to make and enforce contracts regardless of race, is most naturally read to require but-for causation, and background common-law principles confirm that a but-for rule applies, DOJ said. Other appellate courts have adopted a burden-shifting framework where a plaintiff can make a prima facie case of a Section 1981 violation by showing race played a role in a challenged decision and the defendant has the burden to show the same decision would have been made regardless of race, but the section doesn't authorize a shift in the burden of persuasion and a plaintiff must prove all elements of a claim including but-for causation, it said. The U.S. Chamber of Commerce, National Federation of Independent Business and National School Boards Association said the 9th Circuit decision turns Section 1981 into a tool for plaintiffs who weren't discriminated against to impose litigation burdens and settlement demands on businesses, local governments, school districts and other contracting entities merely by alleging race was a factor in the challenged decision. They said the 9th Circuit's "mixed-motive standard" that even if racial animus weren't the but-for cause for not getting a contract but a factor in the decision would "invite tenuous allegations of discrimination" that would be tough to resolve on summary judgment, putting pressure on defendants to settle even claims that lack merit just to avoid litigation costs. Limited government public-interest law firm Washington Legal Foundation said the 9th Circuit's conclusion that Section 1981 allows an exception to the but-for standard is a misread of the statute's text and history. The text focuses on conduct and not motives implies a but-for causation standard, and Congress wasn't interested in looking at the many motivations that were part of a defendant's decision-making, it said. The Center for Workplace Compliance said SCOTUS reasoning in other cases suggests but-for causation applies to Section 1981 claims the way the court has ruled it applies in Title VII retaliation claims.