Comcast Corp. v. Nat’l Ass’n of African American-Owned Media

Under the text and history of 42 U.S.C. §1981, there is no exception to depart from the common law principle requiring a plaintiff to first plead and then prove that its injury would not have occurred “but for” the defendant’s unlawful conduct.

Respondent sought to have Petitioner carry its television channels. When negotiations failed, Respondent sued Petitioner alleging they systematically disfavor 100% African American-owned media companies, violating 42 U.S.C. §1981(a). The district court found that Respondent fell short in showing but-for causation. The Ninth Circuit reversed, holding that plaintiffs must only show race played “some role” in the decision. The Supreme Court vacated, finding that the statute’s text, history, and Court precedent conveys that it follows the normal rule requiring a plaintiff to show that race was a but-for cause of the injury and that burden is constant throughout the life of the lawsuit. The Court explained that the statute’s text suggests but-for causation and surrounding statutes and caselaw uses phrases associated with but-for causation including “on account of,” “by reason of,” “because of,” and “on the basis of.” The Court found the test did not change in light of Title VII’s “motivating factor test.” The Civil Rights Act of 1866 explicitly stated that common law would govern in cases not described within the act. Common law in 1866 required but-for causation as a prerequisite for tort action and pleading standards were generally stricter than those required today. VACATED and REMANDED for consideration under the but-for causation test.