589 U.S. __ (2020).

A 2020 United States Supreme Court opinion in which the Court held that to prevail on a race discrimination claim, “a plaintiff must initially plead and ultimately prove that, but for race, it would not have sufferend the loss of a legally protected right . . .”


Lively v. WAFRA Investment Advisory Group, Inc., No. 20-27029 (2d Cir. July 23, 2021):

The Supreme Court has clarified recently that the but-for causation standard for discrimination claims applies not only at trial but at the pleading stage as well. Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140 S.Ct. 1009, 1014 (2020). “[T]he essential elements of a claim remain constant through the life of a lawsuit,” and although “[w]hat a plaintiff must do to satisfy those elements may increase as a case progresses from complaint to trial, . . . the legal elements themselves do not change.” Id.4 “[T]o determine what the plaintiff must plausibly allege at the outset of a lawsuit, we usually ask what the plaintiff must prove in the trial at its end.” Id. Thus, to defeat a motion to dismiss or a motion for judgment on the pleadings, an ADEA plaintiff must plausibly allege that he would not have been terminated but for his age.

Adetoro v. King Abdullah Academy, 19-cv-01918 (D.D.C. Dec. 4, 2020):

In any event, the Former Employees do not meet the causation standard required under Comcast Corp. v. National Association of African American-Owned Media, 140 S.Ct. 1009 (2020). There, a minority-owned network sued Comcast after it declined to carry the network’s channels.  Comcast cited lack of demand for the network’s programming, bandwidth constraints, and its preference for news and sports programming, which the network did not offer.  The network alleged race discrimination under Section 1981. A district court dismissed the complaint for not “plausibly showing that, but for racial animus, Comcast would have contracted with [the network].”  The Ninth Circuit reversed, finding a “plaintiff must only plead facts plausibly showing that race played `some role’ in the defendant’s decision-making process.”  But the Supreme Court agreed with the district court. After surveying Section 1981’s text and history and its own precedent, the Court held that “a plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally protected right.”  And it held that Section 1981 plaintiffs bear the burden of showing causation from the outset of the case.

Comcast thus demands more from the Former Employees. They must show that—but for not being of “Arabic Middle Eastern descent”—they would have remained employed at the Academy. But their own allegations, accepted as true, sink this theory.

Bone v. University of North Carolina Health Care System, No. 18cv994 (M.D.N.C. Feb. 4, 2021):

Comcast involved a claim under 42 U.S.C. § 1981, “which guarantees, among other things, `[a]ll persons. . . the same right. . . to make and enforce contracts. . . as is enjoyed by white citizens.’”  Originating as part of the Civil Rights Act of 1866, and “designed to eradicate blatant deprivations of civil rights, clearly fashioned with the purpose of oppressing the former slaves,” Section 1981 “can be violated only by purposeful discrimination,” In Comcast, the plaintiff “argue[d] that a § 1981 plaintiff only bears the burden of showing that race was a `motivating factor’ in the defendant’s challenged decision, not a but-for cause of its injury,” at least at the pleading stage of the litigation.  In so arguing, the plaintiff “ask[ed the Supreme Court] to draw on, and then innovate with, the `motivating factor’ causation test found in Title VII of the Civil Rights Act of 1964.”  Looking to Section 1981’s “text, its history, and [relevant] precedent,” the Supreme Court rejected that argument, reversing the lower court’s conclusion that “[a] § 1981 plaintiff doesn’t have to point to facts plausibly showing that racial animus was a `but for’ cause of the defendant’s conduct.”

Related entries