Respondent Entertainment Studios Networks, Inc. (ESN) is an African American-owned media company that owns and operates several television networks.  For years, ESN asked Petitioner Comcast Corporation to carry its television channels, but Comcast refused to enter into a contract with ESN to do so.  In response, ESN and Respondent National Association of African American-Owned Media (NAAAOM) sued Comcast, alleging that Comcast’s refusal to contract with ESN was racially motivated in violation of 42 U.S.C. § 1981, which provides that “[a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”  That statute was passed immediately after the Civil War as part of a broader effort to ensure that the newly freed slaves enjoyed the same rights as other citizens.  The district court dismissed the case for failure to state a claim because it determined that race was not a but-for cause of Comcast’s refusal to contract—that is, ESN and NAAAOM had not established that Comcast would have contracted with ESN but for ESN’s owners’ race.  The Ninth Circuit reversed, holding that a plaintiff can state a viable claim under Section 1981 when discriminatory intent plays any role in a defendant’s decision not to contract, regardless of whether race is a but-for cause of that decision.  Comcast filed a petition for a writ of certiorari, and in June 2019, the Supreme Court agreed to hear the case.

CAC filed an amicus brief on behalf of members of Congress, urging the Court to affirm the Ninth Circuit’s judgment.  Our brief made two key points.  First, we argued that the plain text of Section 1981 did not require a showing of but-for causation.  We contended that Comcast was wrong to assert that Section 1981 was subject to a “default rule” that required such a showing.  To be sure, the Court had recognized that statutes containing causal phrases like “because of” or “results from” generally require a showing of but-for causation absent an indication to the contrary, but Section 1981 contains no such causal language.  Instead, Section 1981’s plain text guarantees all persons “the same” right to make contracts, and any racial discrimination that infects the contract-formation process necessarily deprives those involved of that right, even if the outcome of the contract negotiations remains the same.

Second, we argued that the structure and history of Section 1981 confirmed that the statute, by design, prohibits any racial discrimination in the making and enforcement of contracts, regardless of whether that discrimination is a but-for cause of the parties’ failure to enter into an agreement. Congress first enacted Section 1981 alongside another provision that contained causal language, and Congress deliberately omitted such language from Section 1981.  Indeed, as originally drafted, the provision that became Section 1981 contained causal language, but Congress removed that language before passing the law.  Moreover, we argued that the Court should not infer anything from Congress’s failure to amend Section 1981—over a century after its passage—to more explicitly allow plaintiffs to bring claims where race is one of multiple motivations for an adverse action simply because Congress amended Title VII of the Civil Rights Act in this manner in 1991.

The Court vacated the Ninth Circuit’s decision, holding that a plaintiff bears the burden of pleading and ultimately proving that race was a but-for cause of its injury. Contrary to our argument that the plain text of Section 1981 does not require a showing of but-for causation, the Court determined that the statutory text “is suggestive” of requiring such a showing and that nothing in the statute indicates that one causal standard should apply at the pleading stage while another standard should apply at later stages of litigation. Accordingly, the Court remanded the case to the Ninth Circuit for that court to determine whether the complaint at issue sufficiently alleged but-for causation.