In Comcast v. National Association of African American-Owned Media (NAAAOM), the United States Supreme Court ruled on March 23 2020 that it is not sufficient for plaintiffs to present factual allegations in their complaint showing the defendant was motivated by racial discrimination in denying a contract opportunity. Under Section 1981, a plaintiff must now also present facts showing that the defendant’s discrimination was a “but-for” cause of the plaintiff’s injury. The decision will make it more difficult to hold entities engaged in discrimination accountable for their actions. In its decision, the Court weakened a key provision of the Civil Rights Act of 1866, known as Section 1981, which requires that all citizens have the same rights to make and enforce contracts as white persons.
However, the Court did not adopt more extreme arguments that Comcast and the United States had advanced in the case. Comcast argued that a plaintiff could not maintain a Section 1981 claim if the defendant could point to any race-neutral justification for its conduct, and that Section 1981 does not apply at all to the process of forming a contract. As Justice Ginsburg explained in her concurring opinion, under Comcast’s extreme position, a lender could require African American prospective borrowers to provide more reference letters than their white counterparts without violating Section 1981.
The case arises from a suit filed by the National Association of African American-Owned Media (NAAAOM) and Black-owned Entertainment Studios Networks, Inc. (ESN) against Comcast, alleging that Comcast refused a contract with ESN due to racial discrimination. They sued Comcast for violation of Section 1981, which prohibits racial discrimination in employment, banking, consumer and business transactions, and other economic relationships involving contracts. The NAACP Legal Defense and Educational Fund, Inc. (LDF), along with several other civil rights organizations, filed an amicus brief in the case in October 2019 asking the court to reject Comcast’s arguments that would undermine this critical statute. The March 2020 decision does not resolve the dispute between ESN and Comcast but instead returns the case to the Court of Appeals for further consideration.
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.