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Recent U.S. Supreme Court Case Raises Level of Proof for Proving Discrimination in Contracts

Cara Daggitt

On March 23, 2020, the Supreme Court of the United States handed down a decision in Comcast Corp. v. National Association of African American Media. This was a case between two network television companies. The Plaintiff, Entertainment Studios Network, is an African-American owned television network. The Defendant is Comcast Corporation.  Everyone is familiar with their channels such as MSNBC, CNBC, USA Network, E!, and the film studio Universal Pictures.

The issue started after Comcast refused to carry ESN’s channels. ESN sued, alleging that Comcast’s behavior violated a Reconstruction-era law, which guarantees “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U. S. C. §1981. In other words, ESN argued that Comcast refused to contract with it because ESN is African-American owned.

The Supreme Court held that Plaintiff ESN had to prove that Defendant Comcast refused to enter into business contracts with it solely because the Plaintiff was African-American owned. This is called the “but for” standard, and it can be a difficult standard to meet in discrimination cases such as this one.

When a Plaintiff is held to a but-for standard of causation, he or she has to show that the harmful action occurred solely because of his or her race, instead of showing only that his or her race played “some role” in the Defendant’s decisionmaking process. In the Comcast case, the Supreme Court decided that the Plaintiff should be held to the but-for standard. So in that case the Plaintiff, ESN, is now required to show that Comcast refused to enter into a contract with it solely because it is a black-owned company.

The attorneys at Freking Myers & Reul continue to keep up to date on the latest employment cases from the U.S. Supreme Court and any changes in the law they bring. We understand the challenges that our clients can face when they have been discriminated against and we are here to help.

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