Supreme Court to Hear “Mixed-Motive” Employment Discrimination Case

The title of this article appears to be deceptive if not flat out wrong as Comcast Corp. v. National Association of African American-Owned Media isn’t an employment case. Nevertheless, it presents an important legal question for employers because the law it involves applies to them as such. Understanding the issue in the case—whether a claim of race discrimination under 42 U.S.C. § 1981 fails in the absence of but-for causation—requires a little background.

Section 1981, enacted in 1866, prohibits discrimination on the basis of race in contracting and employment, among other things. It states “[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.”

Title VII of the Civil Rights Act of 1964 disallows not only employment discrimination “because of” (or but-for) race, color, religion, sex, or national origin but also disallows these characteristics to be “a motivating factor for any employment practice, even though other factors also motivated the practice.” This latter theory of employment discrimination under Title VII is called “mixed motive.”

In this case an African American-owned operator of television networks sued Comcast under Section 1981 claiming its refusal to contract with the networks was racially motivated. Comcast argued that it could only be sued under Section 1981 if racial discrimination was the “but-for” reason it would not contract with the networks. According to Comcast: “It is . . . textbook tort law that an action ‘is not regarded as a cause of an event if the particular event would have occurred without it.’” 

The Ninth Circuit disagreed and applied the “mixed-motive” framework from Title VII to Section 1981 despite the fact that Section 1981 contains no “motivating factor” language like Title VII.

In a case decided the same day where the same networks sued Charter Communications, the Ninth Circuit noted that Section 1981 guarantees “the same right” to contract “as is enjoyed by white citizens.” According to the Ninth Circuit: “If discriminatory intent plays any role in a defendant’s decision not to contract with a plaintiff, even if it is merely one factor and not the sole cause of the decision, then that plaintiff has not enjoyed the same right as a white citizen.”

This case is important to states and local governments because like private employers they can be sued for employment discrimination under Section 1981. The Ninth Circuit’s holding that mixed-motive cases may be brought against employers under Section 1981 has numerous downsides for employers. First, it is easier for employees to prove that discrimination was one of a number of factors in an employment decision rather than the sole factor. Second, if the Supreme Court agrees with the Ninth Circuit, Section 1981 will be an even more attractive vehicle to sue employers. Compared to Title VII it has a longer statute of limitations, no damages cap, and presumably no defense to damages where the employer would have made the same decision regardless of race.