Labor & Employment Law Daily Justices consider whether but-for causation is pleading standard for Section 1981 discrimination
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Friday, November 15, 2019

Justices consider whether but-for causation is pleading standard for Section 1981 discrimination

By Joy P. Waltemath, J.D.

Can pleading a motivating factor also mean pleading but-for causation, remembering that but-for causation isn’t sole-factor causation?

In Comcast Corp. v. National Association of African American-Owned Media (NAAAOM) (No. 18-1171) the U.S. Supreme Court agreed to review only the question of whether a claim of race discrimination under Section 1981 fails in the absence of pleading but-for causation. Section 1981 prohibits racial discrimination in contracts—including in contracts for employment.

But-for causation. Katie Eyer, Professor of Law at Rutgers Law School, provided an explanation on Twitter of just what the question the Justices will consider should mean. She pointed out that “As the Supreme Court has recognized, ‘but for’ cause does *not* require a showing of sole causation. Rather, to be a but-for cause, a consideration (like race) need only be “the straw that broke the camel’s back a *very* different standard than sole causation.”

As an example, Professor Eyer cited a hypothetical in which “an African American employee who was late to work four times and was fired—while his white co-workers who were late to work as often or more were not. Under a sole cause standard, this case would be virtually impossible to win, because the employer would argue—let’s assume truthfully—that they would not have fired the employee if he had not been late to work. But under a but-for cause standard, this case should be an easy case: white workers who did the very same thing were not fired. Race was, in the Supreme Court’s words, ‘the straw that broke the camel’s back.’”

Eyer continued: “Discrimination cases almost always take this form—a mix of factors in which race (or some other protected class status) tipped the balance but was not the only consideration.

A requirement to show that race was “the straw that broke the camel’s back” may be challenging to meet in these cases, but it would not be a disaster for civil rights.”

However, she posited, that “A requirement that civil rights plaintiffs show that race was the “sole” cause of the defendant’s actions *would* *be* *a* *disaster.* But, it should not even be at issue in Comcast based on the question presented.”

What is the pleading standard? In the Comcast case below, which arose outside the employment context, the African-American owner of Entertainment Studios Network (ESN) sued Comcast, claiming that its decision not to carry channels produced by ESN amounted to racial discrimination in violation of Section 1981.

Comcast contends that the Ninth Circuit’s holding (reversing the district court dismissal of ESN’s complaint)—that to prevail in a Rule 12(b)(6) motion on their Section 1981 claim, the plaintiffs were required only “to plausibly allege that discriminatory intent was a factor in [the] refusal to contract, and not necessarily the but-for cause of that decision”—created a split with the Third, Sixth, Seventh, Eighth, and Eleventh Circuits, all of which have ruled that but-for causation applies.

On the other hand, the NAAAOM asserts that every circuit court of appeals “permits plaintiffs to invoke a ‘motivating factor’ causation standard for racial discrimination claims under Section 1981.” It contends Comcast is arguing that the Court should change current law under Section 1981 and impose a but-for causation standard at the pleading stage. Comcast has failed to point to any Supreme Court or circuit court decision requiring a Section 1981 plaintiff to allege but-for causation to survive a motion to dismiss, according to the NAAAOM.

Comcast’s merit brief argument. Beginning with the statutory language of 42 U.S.C. § 1981, Comcast notes that Section 1981 guarantees “[a]ll persons… the same right… to make and enforce contracts… as is enjoyed by white citizens.” “By definition,” Comcast says, “a plaintiff has not been denied the “same right” to make a contract as white citizens if the exact same decision on contract formation would have been made if the plaintiff had been white.”

Traditional requirement. The petitioner suggests that “but-for causation was a well-established pre-requisite for tort liability when Section 1981 was first enacted in 1866.” Further, when Congress finally amended a different anti-discrimination law to dispense with but-for causation in limited circumstances, it made no such change to Section 1981. And it argued the Court “has repeatedly and consistently described the judicially implied private right of action under that statute as requiring plaintiffs to show that the challenged contracting decision was made ‘because of’ the plaintiff’s race—a clear reference to the traditional requirement of but-for causation.”

“Irrespective of race.” Comcast further argues that the Ninth Circuit decision reversing dismissal of the complaint “vastly expanded the scope of Section 1981’s reach while undermining the careful remedial limits that Congress imposed on Title VII when it did pro-vide for a ‘motivating factor’ causation standard. Under the decision below, a party may be held liable for racially discriminatory contracting—and subjected to compensatory and punitive damages—even where it would have made the same contracting decision irrespective of race.”

Beyond the question presented? Comcast too argued (both in its brief and at oral argument) that ESN and NAAAOM have “alleged an outlandish conspiracy among Comcast, leading civil-rights organizations, and even the federal government to discriminate not against African-Americans, or African American–owned television networks, but only against “100% African American–owned” networks—a gerrymandered racial cate-gory never before recognized by the courts.” Accordingly, Comcast wants the Ninth Circuit decision reversed, and not remanded, and for the Court to dismiss the case with prejudice.

NAAAOM’s merits brief. The respondents characterize the case as asking the Court “to choose between two different approaches as to what must be pled for causation for a claim under section 1981,” with the Ninth Circuit holding that a complaint alleging that race was a motivating factor for the refusal to contract was enough to withstand a motion to dismiss, while Comcast was claiming it must allege that race was the but-for cause for the denial of contracting.

In the respondents’ view, if Comcast’s interpretation were to prevail, “a plaintiff who alleges that race was a motivating factor for the refusal to contract would not be entitled to conduct discovery no matter how strong the evidence of racism unless the plaintiff could meet the stringent requirement of plausibly alleging that race was the but-for cause for the refusal to contract.”

Inference of discrimination. That may be the case for age and retaliation, where “the burden of production and persuasion always remains with the plaintiff.” But for race and sex discrimination under Title VII, the respondents stress, “a plaintiff is not required to allege and prove but-for causation, but rather need only raise an inference of discrimination. If the plaintiff makes out a prima facie case, the burden shifts to the defendant to present evidence that it was motivated by legitimate, nondiscriminatory reasons.”

The respondents characterize the choice between these approaches as “enormously important. Under a but-for test, it is likely that many potentially meritorious claims would be dismissed at the pleading stage. By contrast, a motivating factor standard would require a plaintiff to plausibly allege intentional racial discrimination, but it would allow many more potentially meritorious cases to proceed to discovery.”

Oral argument. The Chief Justice’s first question for Miguel Estrada, arguing for the petitioner, was whether the distinction was “somewhat academic.” He noted the contract negotiation process involved several steps and if at one of them there was clear racial animus, but the process continued, “it may be hard to prove but-for causation. On the other hand,” the Chief Justice continued, “it’s also hard to ignore the part—the step in which there was clearly evident racial animus. And it may be a reasonable argument or allegation that animus continued through, even though manifested only at one stage of the process.”

Justice Kagan was more specific. “But this is a complaint,” she said, “what do you think the Plaintiff has to allege at the beginning?”

Motivating factor also can be but-for cause. Meanwhile, Justice Sotomayor continued with a theme the Justices—and the advocates—struggled with throughout the argument: “I go back to the Chief Justice’s initial point—which is, if I come forward and show that race was a motivating factor, it can also be the but-for. Until a defendant is deposed and discovery is held, then that becomes an issue for the trier of fact of whether or not that motivating factor was a but-for cause.”

Justice Alito seemed to be on the same page, saying, “But, if you look at the recitation of facts … could you say that those are insufficient to satisfy the pleading standard even if the burden of persuasion is but-for causation?”

Statutory language. Also addressing the Court for the United States, as amicus curiae supporting the petitioner, was Morgan L Ratner. In her questioning, Justice Sotomayor pointed out that the statute itself doesn’t include “any of the but-for language, ‘because of’ or any of the other that we have interpreted in any other statute.”

“What I see is a statute that says all citizens must have the same right. And we’ve also said the civil rights law was designed to eliminate all race discrimination. I’m not sure how we can square those two things with a but-for.” Sotomayor continued, “how can you say that you have the same right and that we’re eliminating all vestiges of discrimination if we are not using motivating factor but are using a but-for standard?”

What’s the difference at the pleading stage? Justice Breyer, however, took a different approach: “[M]y question is I don’t understand; if we’re talking about pleadings, what’s the difference? I mean, you know, they have some evidence, and the evidence is, on information and belief, we think that the Defendant here used race improperly to deny us the contract. Then they list it. And who cares whether they say it was a motivating factor or whether they say it was a but-for?

A consideration with no ultimate effect? Ms. Ratner responded that the core difference was “the idea that race could have been some sort of consideration, but a consideration that had no ultimate effect on the result.” But Justice Breyer suggested that “it’s true it wouldn’t be a consideration where the applicant was a white person. Indeed, it couldn’t have been. And if the applicant is a black person, it could be. The statute says you should treat a white person and a black person alike.”

Replied Ms. Ratner: “If it really does make a difference, then you have but-for causation. But-for cause does not mean sole cause.”

Shifting burdens. Once Erwin Chemerinsky, arguing on behalf of the respondent, began his argument, the discussion veered from the pleading stage to the burden at trial, with the Justices also noting how unusual it was for them to be addressing a case at the motion to dismiss stage.

Justice Sotomayor noted that “all you’re arguing, I think, is if you plead motivating factor, that that’s enough to survive at a pleading stage?” His response? “Exactly.” But Sotomayor continued: “But you accept that as a matter of burden at trial or in summary judgment, you do have to prove but-for causation?”

Hypotheticals. The Justices then entertained multiple hypotheticals, including some from tort law, addressing contributing and independent causation standards. Here’s just one of them: “I went to a hotel to rent a room and I was told that I was not going to get a room because none were available and also the hotel doesn’t rent to blacks. Should that be sufficient to survive a motion to dismiss?”

Justice Breyer returned to his earlier question: Why doesn’t it also fit the but-for test? I mean, you know, if he hadn’t been black, they would have rented it to him.”

Yet Justice Gorsuch queried, “Wouldn’t the very hypothetical you’ve given us satisfy the but-for test? There are two contributing causes. They’re both but-for causes. And under traditional tort principles, why wouldn’t that be exactly the sort of case that would survive a 12(b)(6) motion?”

Didn’t you plead but-for causation? By the end of the argument, Chief Justice Roberts was asking, “why have you so strenuously resisted alleging but-for causation?” And Mr. Chemerinsky said that they actually did argue that but-for causation is alleged in the complaint, but “when you focus on the statutory language, when you focus on Congress’s broad remedial purpose, it did not mean to impose a requirement for but-for causation at the pleading or at the prima facie case stage either.”

Different standards for pleading and proof. Justice Kagan then suggested it was “confusing to throw in a different causal standard for the pleading stage as opposed to the ultimate stage. I mean, you’re suggesting that but-for cause is sole cause. But-for cause has never been sole cause. There can be three but-for causes in a case. You know, if you take away each of these three things, the outcome would have been different. But motivating factor is something different. Motivating factor you can take out and the outcome would still be the same.”

In closing, however, Mr. Chemerinsky said “Our view is that there should be enough to allege that race is a motivating factor. The other side says it has to be alleged that race is the but-for cause. When you think of Congress’s broad remedial purposes in 1866, is there a doubt that Congress wanted then to open the door to claims with regard to race discrimination in contracting, not to close that door.”

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