Bench Memos

Law & the Courts

Unanimous Because Easy

In Comcast Corp. v. National Association of African American-Owned Media, the Supreme Court ruled unanimously on Monday that a plaintiff suing over alleged unlawful discrimination in the making of contracts under 42 U.S.C. § 1981 must plead and prove that its injury would not have occurred “but for” the defendant’s unlawful conduct.

In attacking the Court’s ruling, some critics on the Left have resorted to outlandish misrepresentations of what the “but for” causation standard means. For example, in the Nation, Elie Mystal asserts (emphasis added):

Comcast argued that Allen had to allege that race was the “but-for” cause of Comcast’s decision.

Essentially, Comcast argued that Allen needed to show that deep, malicious racism was the only thing Comcast executives were thinking about when they decided to shut out Allen’s network.

Comcast’s position holds African American litigants, and anyone else who falls under the protections of the 1866 Civil Rights Act, to a nearly impossible standard. Racist corporate executives don’t make a habit of walking around saying, “I would give that guy a contract if he weren’t black.” Even when they do think and act like that, they rarely commit such thoughts to an e-mail. Comcast wants black people to be able to prove a level of racism most white people won’t admit to. Under Comcast’s logic, all of their executives could have met with Allen while wearing MAGA hats and asked him which “shithole country” his ancestors came from—and then simply told Allen they weren’t going to carry his network because of “economic” reasons.

The Supreme Court agreed with Comcast’s position.

Nearly everything between the first and last sentences of that passage is nonsense. As Justice Gorsuch explains in his unanimous opinion, all that the but-for standard requires for a section 1981 claim is that the plaintiff show that the defendant “would have responded differently [to the plaintiff] but for the plaintiff’s race.” Far from being “a nearly impossible standard,” that is the ordinary standard of causation. Where there is plausible—even if entirely circumstantial—evidence of a racial motive on the part of the defendant, it would be the extremely rare case that would not survive a defendant’s summary-judgment motion and go to a jury for decision. And that jury would have broad discretion to make all sorts of reasonable inferences about discrimination, and it would have to find only by a preponderance of the evidence—the lowest evidentiary standard—that discrimination was a but-for cause.

For similar reasons, Ian Millhiser is flatly wrong when he contends (emphasis added) that

discrimination suits often place the plaintiff in an impossible position. The plaintiff may have a hunch that they are a victim of unlawful discrimination, but unless they can read minds — or, more often, unless the employer is foolish enough to declare in writing that they acted with racist motives — the plaintiff has no way to prove the defendant’s actions were driven by improper means.

There is no mystery why the liberal justices joined Justice Gorsuch’s opinion: The ruling was unanimous because the issue was an easy one.

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