SCOTUS Ruling Might Not Mean 9th Circuit Dismissal of Comcast Litigation
Comcast's victory Monday in a Supreme Court decision on what legal standard must be met in a complaint that the cable operator was racially discriminatory in what programming it doesn't carry (see 2003230006) may not signal a quick end to the legal fight. University of Connecticut employment law professor Sachin Pandya, who was part of an amicus brief on behalf of Entertainment Studios Network (ESN) suing Comcast, said the 9th Circuit Court of Appeals conceivably could still decide that the case being remanded from SCOTUS plausibly survives the MVPD's motion to dismiss even under the standard SCOTUS requires. Oral argument was in November (see 1911130024).
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Comcast said it's pleased the court "unanimously restored certainty on the standard to bring and prove civil rights claims," and predicted the 9th Circuit will now agree with a lower court's earlier dismissal of ESN claims against it. Charter Communications, fighting similar litigation in the 9th Circuit by ESN, didn't comment.
Reversing a 9th Circuit decision that ESN only had to show racial animus played a role in Comcast's decision not to carry its networks (see 1903110012), the decision penned by Justice Neil Gorsuch makes clear that claims under Section 1981 federal rights law must meet a "but-for" standard that the claim hinges on race being the motivator for the defendant's action. It said ESN urges a "motivating factor" standard for 1981 cases, but precedent has rejected that in past cases. The decision isn't ruling on whether ESN's complaint is plausible under the but-for standard, and said the 9th Circuit has yet to weigh the complaint that way.
The ruling was unanimous. Justice Ruth Bader Ginsburg's concurring opinion said the court's reserving the plausibility of ESN's complaint for consideration on remand under the but-for standard is "enabling me to join its opinion." She disagreed with Comcast's attempt to make Section 1981 allow racial discrimination "so long as it occurs in advance of the final contract-formation decision." An equal right to make contracts "is an empty promise without equal opportunities to present or receive offers and negotiate over terms," she said.
"Unfortunately, the Supreme Court has rendered a ruling that is harmful to the civil rights of millions of Americans," said ESN founder-CEO Byron Allen in a statement. "This is a very bad day for our country. We will continue our fight by going to Congress and the presidential candidates to revise the statute to overcome this decision by the United States Supreme Court, which significantly diminishes our civil rights."
UConn's Pandya said the ruling is the latest in a series of SCOTUS decisions starting with 2009's Gross v. FBL Financial Services in which the court interprets employment discrimination statutes favoring the but-for test over the more plaintiff-friendly motivating factor test. Monday's decision will have its biggest effect in employment law since most Section 1981 claims are against employers, he said. The Comcast decision doesn't decide whether the section covers just the final decision in a contract or also the earlier stages of contract formation, Pandya said. Having 1981 cover only the final decision to enter a contract would have radically diminished the civil rights law's scope, he said.
Comcast said the decision didn't change "the well-established framework that has protected civil rights for decades." It's "proud of our record on diversity and will not rest on this record.”