Contributing Author: Bryan Sullivan
Bryon Allen lost the appeal of his racial discrimination suit against Comcast in the Supreme Court. ... [+]
The United States Supreme Court today ruled in a unanimous decision that Byron Allen and his company Entertainment Studios Network (ESN) bore the burden of showing that race was the “but-for” cause of injury in the racial discrimination case brought against Comcast. The decision pushes (remands) Allen and ESN’s case back to the lower court, where the case can proceed with a much higher threshold of proof. The crux of the case has been a distinction between race as a contributing factor in agreeing to entering into a contract and race as the sole or primary factor - and when the burden of proof comes into play.
Allen and ESN had sued Comcast after the network declined to carry his network’s programming, citing capacity concerns and a lack of demand from viewers. But Allen and ESN alleged that the refusal to carry ESN’s slate of channels was motivated by race, and in violation of 42 U.S.C. §1981. The statute states, in part (as reprinted in the court’s decision) “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”
The District Court initially dismissed the complaint, stating that there was insufficient proof that without racial bias Comcast would otherwise have entered into an agreement with ESN. The Ninth Circuit Court of Appeals then reversed that decision, maintaining that ESN only needed to show that race had played “some role” in the decision.
The syllabus for the decision notes that “ESN urges applying the ‘motivating factor’ causation test in Title VII of the Civil Rights Act of 1964 to §1981 cases. But this Court has already twice rejected such efforts in other contexts, see, e.g., Gross v. FBL Financial Services, Inc., 557 U.S. 167, and there is no reason to think it would fit any better here. Moreover, when that test was added to Title VII in the Civil Rights Act of 1991, Congress also amended §1981 without mentioning ‘motivating factors.’”
Erwin Chemerinsky, arguing for Allen and ESN, conceded that at some point in the proceedings the “but-for” cause would have to be proved. He argued that at earlier stages in a case, without the benefit of conducting depositions and discovery, such a burden would be “insurmountable.”
Justice Neil Gorsuch, delivering the Supreme Court opinion, wrote, “Here, a plaintiff bears the burden of showing that race was a but-for cause of its injury. And, while the materials the plaintiff can rely on to show causation may change as a lawsuit progresses from filing to judgment, the burden itself remains constant.” Elsewhere, the decision continues, “It is ‘textbook tort law’ that a plaintiff seeking redress for a defendant’s legal wrong typically must prove but-for causation.”
Comcast said in a statement that “... the Supreme Court unanimously restored certainty on the standard to bring and prove civil rights claims. The well-established framework that has protected civil rights for decades continues. The nation’s civil rights laws have not changed with this ruling; they remain the same as before the case was filed.” They added, “We now hope that on remand the 9th Circuit will agree that the District Court properly applied that standard in dismissing Mr. Allen’s case three separate times for failing to state any claim.”
The unanimous decision may come as a welcome surprise to some in this politically polarized landscape. Despite differences of opinion in this particular case, the crucial concept of the law being applied uniformly, across political divides and issues, is perhaps a welcome and reassuring sign.
As Kori Hale noted in a previous Forbes article, the case will likely have broader implications for other cases.
“The U.S. Supreme Court chose not to act in the appeal by Charter Communications with similar claims by Allen, after the company also declined to carry his channels. It’s possible this Charter case is likely to reflect a mirror outcome to the decision reached in the Comcast appeal.”
Bryan Sullivan, Partner at Early Sullivan Wright Gizer & McRae, advises and represents his clients as a legal strategist in all their business affairs. He has significant experience on the litigation and appeals side of the practice, as well as with entertainment and intellectual property contracts, investment and financing agreements, and corporate structure documents on the dealmaking side.
