What Does It Take to Prove a Race-Discrimination Case?

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP November 18, 2019

When employees sue for race discrimination, do they have to show that the employer's bias was the ultimate cause or one of several motivating factors that led to an adverse employment decision?

In Comcast Corp. v. National Association of African American-Owned Media, the U.S. Supreme Court has been asked to decide which standard applies to claims brought under Section 1981 of the Civil Rights Act of 1866—a Reconstruction-era law that prohibits bias based on race and provides the same rights and benefits as "enjoyed by white citizens" in contractual relationships. The law applies to employment and other business agreements, including independent-contractor arrangements.

The 9th U.S. Circuit Court of Appeals said plaintiffs have to show that race discrimination was a motivating factor, which is the standard of proof for similar claims under Title VII of the Civil Rights Act of 1964.

During oral argument Nov. 13, Comcast (the defendant in the case) argued that the Supreme Court should reverse the 9th Circuit's ruling and hold that plaintiffs must prove—and properly allege in the complaint—that race discrimination was the "but for" cause—meaning that "but for" the alleged discriminatory act, the adverse action wouldn't have happened. In other words, if the defendant would have made the same decision for other legitimate reasons, then the claim should fail.

"If the court were to rule broadly that a party need only prove that race is a motivating factor to establish a claim under Section 1981, that would make Section 1981 claims much more attractive to employees who sue for alleged racial discrimination by their employers," said Adam Sencenbaugh, an attorney with Haynes and Boone in Austin and San Antonio, in an interview with SHRM Online.

What's the Difference?

Why would employees file a Section 1981 claim instead of a Title VII claim? Section 1981 broadly applies to all private employers, whereas Title VII applies to private employers with at least 15 employees. Additionally, Section 1981 claims have a longer statute of limitations than Title VII claims and no caps on the damages that plaintiffs can recover. Plaintiffs can also bypass the Equal Employment Opportunity Commission's administrative process, which is required for Title VII claims.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Employees asserting race- or ethnicity-based claims that are covered by both laws can bring a claim under each simultaneously. Title VII, however, is broader. For example, it also covers employment claims based on sex and religion and includes claims of unintentional bias. Section 1981 only applies to claims of intentional discrimination.

Argument for Broader Standard

Although the Comcast case has implications for the workplace, the dispute involves a business relationship. Entertainment Studios Network (ESN), which is run by black comedian and media entrepreneur Byron Allen, and the National Association of African American-Owned Media (NAAAOM) filed a lawsuit asserting that Comcast violated Section 1981 by refusing to carry ESN's channels.

The 9th Circuit has yet to rule on the merits of the case—it held only that ESN and NAAAOM brought a valid claim by alleging that race was a motivating factor for Comcast's decision to deny the contract.

Arguing on behalf of ESN and NAAAOM, Erwin Chemerinsky pointed to the statute's language. Section 1981 states that "all persons should have the same right to contract as white individuals," he told the Supreme Court justices. Chemerinsky is the dean of the University of California, Berkeley, School of Law.

"This is about creating a requirement for colorblindness with regard to contracting," he added. "If race is used as a motivating factor in denying a contract, then there is not the same right with regard to contracting."

Argument for Stricter Standard

Miguel Estrada, an attorney with Gibson Dunn in Washington, D.C., argued on behalf of Comcast. He criticized the 9th Circuit's ruling that a plaintiff could prevail even if the decision would have been made anyway "for entirely appropriate business reasons having nothing to do with race."

He argued that the Supreme Court has previously held that "but-for causation is the background rule that Congress must have presumed to have been adopted in all federal statutes unless the statute provides otherwise." He noted that Congress amended Title VII in 1991 to permit a motivating-factor standard but didn't amend Section 1981 to do the same, even though it amended Section 1981 in other respects.

"This all but conclusively shows that Section 1981 requires but-for causation," he said.

Siding with Comcast, an attorney with the U.S. Department of Justice said Section 1981 is meant to give people the same right to make a contract, regardless of their race. "I think if you asked an ordinary English speaker whether someone who would never have been granted that contract, regardless of her race, whether that person was denied the same right to make that contract, I think people would say no," argued Morgan Ratner, assistant to the solicitor general.

Persuading the Justices

At oral argument, the justices struggled with whether this case was really about the initial pleading standard when a lawsuit is filed or the standard to ultimately prove a Section 1981 claim, Sencenbaugh said.

Counsel for ESN and NAAAOM seemed to argue that the motivating-factor standard applied at the pleading stage and but-for causation must ultimately be shown to win the case.

Chief Justice John Roberts Jr. wondered if the dispute is "somewhat academic." Justice Samuel Alito Jr. said the case may not actually represent "the big issue that has been portrayed."

Justice Elena Kagan, however, said that in the initial stages—before evidence is produced—it would be hard for a plaintiff to know what "might be in the defendant's mind."

Miriam Nemetz, an attorney with Mayer Brown in Washington, D.C., noted, "Unless the Supreme Court reverses the 9th Circuit's decision, it will be harder for the courts to weed out unwarranted claims at the initial pleading stage and would impose additional litigation costs on employers and burden the courts."



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