Yesterday the Supreme Court heard oral arguments in Comcast Corp. v. National Association of African American-Owned Media and Entertainment Studios Networks, where the question before the Court is “Does a claim of race discrimination under 42 U.S.C. § 1981 fail in the absence of but-for causation?”
The case arose when Entertainment Studios Networks, which is solely owned by the actor Byron Allen, sued Comcast over its decision not to carry several of its television channels, alleging that it was motivated by racial discrimination. The district court dismissed the complaint for failing to state a claim on which relief can be granted, and the Ninth Circuit reversed, holding that a plaintiff under § 1981 need only allege that racial discrimination was a motivating factor in the refusal to contract to survive a motion to dismiss. Comcast appealed, arguing that it was insufficient to allege race as merely a factor instead of the “but-for” cause of a contract’s denial.
The text of the statute makes this a straightforward case. Section 1981, first enacted by Congress as part of the Civil Rights Act of 1866, guarantees “[a]ll persons . . . the same rights . . . to make and enforce contracts . . . as is enjoyed by white citizens.” The requirement of “but-for” causation is simply a way of repeating the point that a party does have the “same right” to make a contract if a contract’s denial would have occurred if that party were white. The statute’s text additionally provides guidance that “in all cases where” the laws of the United States are “not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law . . . shall be extended to and govern said courts in the trial and disposition of such cause.” The common law at the time of enactment clearly required but-for causation, regardless of whether the courts employed that specific term of art.
It was not until it passed the Civil Rights Act of 1991 that Congress adopted a motivating-factor standard for an antidiscrimination law in place of the default rule. But significantly, that standard was applied only to some claims made under Title VII of the Civil Rights Act of 1964, not to the 1866 Act. And in fact the 1991 law included unrelated amendments to § 1981 without applying the motivating-factor standard to that statute.
In an opinion by Justice Kennedy, the Supreme Court reiterated as recently as 2013, in University of Texas Southwestern Medical Center v. Nassar, the “textbook tort law that an action ‘is not regarded as a cause of an event if the particular event would have occurred without it.’” This remains “the default rule [Congress] is presumed to have incorporated, absent an indication to the contrary in the statute itself.”
It might have been the weight of statutory reality that backed Erwin Chemerinsky, arguing for the plaintiffs, into a corner during oral argument. Retreating from the broadly worded question presented of whether a claim of race discrimination under § 1981 fails in the absence of but-for causation, Chemerinsky argued that the question was confined to the pleading stage and that the Court could rule a motivating-factor allegation sufficient without addressing subsequent stages of litigation. Justice Gorsuch balked at his suggestion: “We haven’t made some special exception for [the] pleading stage.” Justice Alito followed that “if but-for cause is the standard at the end of the day” but a complaint concedes that racial animus was not a but-for cause, “the case should be permitted to go forward toward its inevitable doom?” Justice Kagan had a similar reaction: “Motivating factor you can take out and the outcome would still be the same. And it just seems quite confusing to me to put in something that’s not the same question as the ultimate question at the pleading stage . . . .” In response, Chemerinsky could not identify any area in which a plaintiff does not have to plead what he has to prove.
Even for the one area in which Congress has adopted a motivating-factor standard — discrimination claims under Title VII — but-for causation is an affirmative defense to liability under Price Waterhouse v. Hopkins (1989). It is thus true that some Title VII plaintiffs do not need to plead but-for causation, but because it is not an element of their claim; it is an element of a defense. Chemerinsky’s basic notion that there can be a mismatch between what a plaintiff needs to plead and prove has nothing to do with burden-shifting.
The real question should be whether Chemerinsky’s client has adequately pleaded but-for causation — but that is not the question before the Supreme Court. In Bell Atlantic Corp. v. Twombly (2007), the Supreme Court made clear that a complaint must allege sufficient facts that, if accepted as true, would “state a claim to relief that is plausible on its face.” In Ashcroft v. Iqbal (2009), the Court reiterated that it was not enough to advance factual allegations that are “‘merely consistent with’ a defendant’s liability.” A complaint that admits to an “obvious alternative explanation” for the defendant’s conduct must be dismissed absent additional factual content that pushes the claim “across the line from conceivable to plausible.”
In a case like Comcast, it is not enough simply for a plaintiff to say that he is black and the person who received the contract is white. That may make discrimination conceivable, but it does not make it plausible. Some justices, however, seemed to water down the test for a sustainable standard. Justice Kavanaugh referred to the pleading threshold as “a pretty low bar” that means race-discrimination cases “are not usually thrown out at the motion to dismiss stage.” The Court should not say something about the pleading standard — especially when it is not even the question before the Court — that would threaten to undercut Iqbal and Twombly. The Court should make clear that plaintiffs in § 1981 cases have to allege but-for causation, and they have to do so under the same Iqbal/Twombly standard that applies to everyone else.