UC Law professor files amicus brief with U.S. Supreme Court for racial discrimination case

This week, nationally recognized law professors with expertise in employment and tort law filed an amicus brief in the case of Comcast Corp. v. National Association of African-American Owned Media, a potentially precedent-making racial discrimination case to be heard at the U.S. Supreme Court Nov. 13.

The case looks at whether a claim of race discrimination under 42 U.S.C. § 1981 requires that the plaintiff show but-for causation, or only that race is a motivating factor.  The causal standard is important because it controls which cases the courts dismisses and which it allows to proceed.

University of Cincinnati College of Law Professor Sandra Sperino served as counsel of record and co-author of the brief on behalf of employment law professors.  She was joined by Cincinnati Law professors Ann Hubbard and Elizabeth Malloy, along with other law professors.

Entertainment Studios Network (ESN and the National Association of African American-Owned Media), both owned by African American actor and comedian Byron Allen, sued Comcast over its decision not to carry ESN’s channels. ESN contends that the decision was based, at least in part, on racial hostility against ESN, the only wholly African American-owned multi-channel media company in the country.  

Comcast is attempting to stop the lawsuit. At issue is a provision known as Section 1981, a Reconstruction-era law that bars racial discrimination in contracting. Comcast says the appeals court improperly made it easier to sue under that statute than under other civil rights laws.

In letting the suits go forward, the United States Court of Appeals for the Ninth Circuit said ESN needed to show only that racial discrimination was a “motivating factor” in the decisions. Comcast, which says its decision was made for legitimate business reasons, says Section 1981 requires ESN to show that it would have received a contract had it not been for racial bias. That’s a standard the Supreme Court has applied in other contexts, including claims of age discrimination and retaliation, but which the Court has held is not appropriate when applied to discrimination claims under Title VII (a federal discrimination statute that also prohibits employment discrimination based on race).

The professors’ brief argues that the Court should not interpret section 1981 to require proof of but-for causation, given that statute’s text, history, and purpose.  Although Comcast invokes the canon of statutory construction that Congress intends statutory terms to have their settled common-law meaning, that canon does not apply here.  Section 1981 has no statutory text that reflects a common-law understanding of causation. Indeed, in 1866, when Congress enacted the predecessor to section 1981, there was no well-settled common-law of tort at all. Rather, just as courts have read 42 U.S.C. § 1982, which shares common text, history and purpose, this Court should read section 1981to require plaintiffs alleging race discrimination to prove that Comcast was motivated at least in part by race.

Moreover, even if Congress had intended section 1981 to incorporate tort law’s evolving understanding of factual causation, that common-law doctrine includes not only but-for cause, but a bundle of causal standards that are appropriate in different cases. Thus, to approximate the common law, this Court could choose two options: (1) apply but-for cause along with all of its supporting causal doctrines, including those which apply in cases with multiple, sufficient causes of an injury, or (2) apply a motivating factor standard, an approach that mitigates the limitations of but-for cause through a single standard. 

Link to the amicus brief

Link to case information