Daily Labor Report®

Big Racial Discrimination Case Fizzles at High Court

Nov. 13, 2019, 6:05 PM

One of the most consequential employment cases of the Supreme Court’s term fizzled during oral arguments Nov. 13, in a case that threatened to make it harder to sue for racial discrimination.

But early in the argument it became clear that all parties actually agreed that plaintiffs must ultimately meet a high standard to prevail in a racial discrimination suit.

The plaintiffs’ attorney, Erwin Chemerinsky, conceded that in the end plaintiffs must show that racial discrimination was the “but for” cause of the adverse action—that is, “that race made a difference” in the defendant’s decision, as Department of Justice attorney Morgan Ratner told the justices.

All that was left for the justices to decide is whether plaintiffs must also allege “but for” causation in their initial complaint to move forward with the litigation, or whether it is enough to allege that race was just a “motivating factor” in the adverse action. In either scenario, plaintiffs still would need to meet the more stringent but-for standard to ultimately prevail in a race bias claim brought under Section 1981 of the Civil Rights Act of 1866.

The case isn’t really about “the big issue” anymore, Justice Samuel Alito said.

On the pleading question, several justices appeared to agree it would be odd to have different legal standard apply at different stages of the litigation. That would be “a little unusual,” Justice Neil Gorsuch said.

But Gorsuch and others also seemed to support the idea that it shouldn’t be too hard to simply bring a case.

This is pre-discovery, Justice Elena Kagan noted, saying it wouldn’t be fair to ask the plaintiff to guess at what’s in the defendant’s mind.

In fact, dismissal of discrimination suits at the motion to dismiss stage are “pretty rare,” Justice Brett Kavanaugh said.

In the end, many of the justices wondered if the arguments were merely academic.

At the pleading stage it’s going to be pretty hard for a judge to ignore allegations of racial discrimination that meet the legal definition of “motivating factor” but that were not the only or but-for cause, Chief Justice John Roberts said.

The only time this is really going to matter is when a complaint goes out of its way to refute itself, Alito quipped.

The court seemed likely to undo a Ninth Circuit ruling that had said “but for” causation wasn’t even required to prevail on a race bias claim. That was a ruling not even the plaintiffs—who won below—supported in their argument.

Such a ruling would be a temporary set back for the plaintiffs here, who claim that Comcast discriminated against minority-owned channels in refusing to carry programming.

But the justices’ reasoning could eventually allow their case to move forward.

The case is Comcast Corp. v. Assoc. or African American-Owned Media, U.S., No. 18-1171, argued 11/13/19.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

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