During the Reconstruction Era, Congress passed a number of laws to enforce the personhood and citizenship of emancipated African Americans. One of these laws was the Civil Rights Act of 1866. The Civil Rights Act of 1866 includes a provision now codified as 42 U.S.C. § 1981 (“Section 1981”). Section 1981 prohibits racial discrimination in our nation’s economy by mandating that all persons in the United States must have the same right to make and enforce contracts “as is enjoyed by white citizens.”
This statute was implemented to protect African Americans from the manifestations of racism that limit economic opportunities and set them on equal footing with white citizens so that they could open businesses, acquire land and housing, and purchase goods. The question in this case is whether a claim of race discrimination under Section 1981 fails in the absence of but-for causation, even when the plaintiff establishes that the discrimination was a motivating factor in the challenged action. A decision that such a case does fail would cripple one of the most powerful civil rights protections that African Americans and other people of color use to combat race discrimination, and prevent potentially thousands of meritorious claims from ever being heard by a judge, let alone rectified.
In this case, African American actor and entrepreneur Byron Allen repeatedly attempted to secure a contract for his company Entertainment Studios Networks, Inc. (“ESN”) with Comcast. Mr. Allen is the sole owner of ESN, which has seven individual lifestyle channels.The ESN channels are carried by many major distributors, including Verizon FIOS, AT&T U-verse, and DirecTV. Since 2008, ESN has attempted repeatedly to secure a contract with Comcast, but Comcast has consistently declined.Despite assuring ESN that its channels were “good enough” and on the “short list” for consideration, Comcast opted to carry more than 80 less popular, White-owned channels.One Comcast executive candidly told ESN why it refused to contract: “We’re not trying to create any more Bob Johnsons,” referring to the African American founder of Black Entertainment Television.
ESN and the National Association of African American-Owned Media sued Comcast, alleging that its decision not to carry ESN’s channels violates Section 1981.The district court dismissed the case at the pleading stage, finding that plaintiffs’ allegations did not sufficiently exclude an alternative explanation for Comcast’s decision based on legitimate business reasons.The Ninth Circuit Court of Appeals reversed the district court’s dismissal of the case, rejecting Comcast’s argument that ESN was required to demonstrate that Comcast would not have refused to carry ESN if not for racial discrimination.The Ninth Circuit held that ESN only needed to allege that race was a “motivating factor” in Comcast’s refusal to contract.
 42 U.S.C. § 1981.  Opposition to Petition for a Writ of Certiorari at 4, Comcast Corp. v. Nat’l Ass’n of African American-Owned Media and Entertainment Studios Networks, Inc., 139 S. Ct. 2693 (Apr. 10, 2019) (No. 18-1171), https://www.supremecourt.gov/DocketPDF/18/18-1171/96050/20190410161850192_Chemerinsky%20Brief%20in%20Opposition%20to%20Petition%20for%20Writ%20of%20Certiorari.pdf.  Id.  Id. at 5.  Id.  Id. at 5-6.  Id. at 6.  Id. at 7.  Petition for a Writ of Certiorari at 9, Comcast Corp. v. Nat’l Ass’n of African American-Owned Media and Entertainment Studios Networks, Inc., 139 S. Ct. 2683 (Mar. 8, 2019) (No. 18-1171), https://www.supremecourt.gov/DocketPDF/18/18-1171/91371/20190308153623647_Comcast%20-%20NAAAOM%20Petition%20TO%20PRINTER.pdf.  Opposition to Petition, Comcast, supra note 64, at 9.  Id. at 10.