This week the U.S. Supreme Court voted unanimously to require a higher standard of proof for bringing racial discrimination claims under United States Code Section 1981.
In Comcast v. National Association of African American-Owned Media News, a Black-Owned Media Company founded by Byron Allen sued Comcast for placing burdens on them during the contract formation process that were not placed on similarly situated Caucasian-owned news enterprises contracting with Comcast.
Plaintiffs successfully opposed Comcast’s motion to dismiss on appeal in the Ninth Circuit, after pleading facts based on a mixed motive theory of discrimination. Specifically, plaintiffs prevailed after pleading that race was a motivating factor in Comcast’s decision to make the contracting process more onerous.
Comcast appealed the Ninth Circuit decision to the U.S. Supreme Court arguing that, at the pleading stage, plaintiffs must plausibly establish that race was the sole factor that motivated Comcast’s decision-making and that, but for, the plaintiffs’ race Comcast would not have acted adversely.
The Supreme Court agreed with Comcast, concluding that a mixed motive is insufficient proof of discrimination and that the higher “but for” threshold governs.
This is a troubling development for the civil rights community because it requires the federal courts and, specifically, the Ninth Circuit to roll back any reasonably liberal pleading metrics and adopt a rigid regime that fails to account for the burdens on civil rights plaintiffs in furnishing evidence of intentional discrimination at the pre-discovery stage.
This case boiled down to the question of what level of racial discrimination and racial profiling is legally acceptable in transacting business with African Americans. The Supreme Court’s resounding response should have been, “none.”
In contrast, the Court unanimously concluded that the level of discrimination must be overwhelming for it to be of legal consequence. Racial Justice advocates and civil rights litigators will need to develop litigation and legislative advocacy strategies that restore, preserve and protect an equal protection paradigm that delivers on its promise to provide access to justice to historically disadvantaged communities and individuals.