Discrimination Claims Against Comcast Get Congressional Backing
A cable programmer suing Comcast for alleged racial discrimination for not being picked up for carriage is getting support before the Supreme Court from some members of Congress, in docket 18-1171 amicus briefs. Pointing to how the high court's construction of Section 1981 of federal anti-discrimination law could affect interpretation of other anti-discrimination statutes the U.S. enforces or that apply to the federal government, the Solicitor General is asking to take part in Nov. 13 oral argument.
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The section plainly doesn't require showing but-for causation that race was the only reason Comcast didn't carry Entertainment Studios Networks, legislators said Monday. It "encompasses every racially motivated refusal to contract" even if other motives prompt that refusal as well, they said. That Congress hasn't amended 1981 to more explicitly allow plaintiffs to bring claims where race is one of several motivations say nothing about the causation standard required to state a Section 1981 claim, they said. Signers, all Democrats and many members of the Congressional Black Caucus, were Sens. Kamala Harris of California, Richard Blumenthal of Connecticut, Cory Booker of New Jersey and Ron Wyden of Oregon, and Reps. Karen Bass and Barbara Lee of California, Joyce Beatty of Ohio, Yvette Clarke of New York, Donald Payne of New Jersey, Ayanna Pressley of Massachusetts, Bobby Scott of Virginia and Bonnie Watson Coleman of New Jersey. Harris and Booker are seeking the presidency.
Even if Congress had intended the section to incorporate tort law's understanding of factual causation, that doctrine includes not only but-for cause but various other causal standards appropriate in different cases, more than 30 discrimination law professors said Monday. They said even if the court were to require showing only but-for cause, it should make clear but-for isn't the sole cause and that in most cases it's not appropriate to dismiss Section 1981 claims at the pleading stage on causation grounds. The 1886 Civil Rights Act explicitly aimed at eliminating racial discrimination in contracts regardless of the possible motivation, and it's no defense that an employer who denies employment also has non-racial reasons, a dozen law and history professors said last week.
Comcast is wrong when it claims but-for causation was a key facet of tort law when Section 1981 was enacted, and there's no general rule requiring but-for causation in 19th century tort law, said tort law professors Mark Gergen of University of California, John Witt of Yale and Paul Hoffman of the University of California at Irvine Law Civil Rights Litigation Clinic.
Comcast is appealing a 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). It previously saw amicus support from DOJ and the U.S. Chamber of Commerce (see 1908160027). The Solicitor General's office Friday motion to take part in oral argument on behalf of Comcast said the company agreed to cede 10 minutes of argument time to the U.S.