In Comcast Corp. v. National Association of African American-Owned Media, an African American-owned media company called Entertainment Studios Network (ESN) is suing Comcast, arguing that the telecom giant violated a federal law prohibiting racial discrimination in contracts when it declined to carry ESN’s television channels. ESN claims that the decision not to carry the network’s programming was discriminatory, noting that ENS is the only 100% African-American owned multi-channel media company in the United States. The National Association of African American-Owned Media (NAAAOM) is affiliated with ESN and is named in the title of the lawsuit.

The district court dismissed the lawsuit on the grounds that NAAAOM did not sufficiently show that Comcast’s decision was motivated by race instead of legitimate business reasons. On appeal, the Ninth Circuit held that NAAAOM brought a valid claim by alleging that race was a motivating factor in Comcast’s decision to deny their contract to carry ESN’s television channels. The case has hit a hurdle because the court must now decide the question, is the presence of race as a motivating factor a sufficient standard on which to decide the merits of the case?

The issue presented to the Supreme Court is whether a claim of race discrimination under 42 U.S.C. § 1981 requires “but-for” causation, where the plaintiff must claim the decision was made because of the plaintiff’s race, or is it sufficient to claim that race was a “motivating factor” in the decision? The case was argued to the court on November 13, but a decision is not expected until late spring of 2020.

What standard applies?

The “Motivating Factor” Standard

Arguing on behalf of ESN/NAAAOM, noted attorney and Dean of the University of California Berkeley School of Law Erwin Chemerinsky stated, “this is about creating a requirement for colorblindness with regard to contracting . . . all persons have the same right to contract . . . if race is used as a motivating factor in denying a contract, then there is not the same right.” If this broader standard is chosen, the plaintiffs will likely be able to proceed with the lawsuit.

The “But-For” Standard

Alternatively, Comcast is arguing that the “but-for” standard, a harder standard for NAAAOM to meet, should be applied to this case. Miguel Estrada, an attorney arguing for Comcast, stated that Section 1981 requires but-for causation because unlike Title VII, Section 1981 was not amended to permit a motivating-factor standard for claims of discrimination. Additionally, a broader standard would allow the plaintiff to prevail even in circumstances where the contract was denied based on appropriate business reasons unrelated to race.

Clarity Needed

Both parties to this lawsuit have valid points. Comcast may have declined to contract with ESN for legitimate business reasons unrelated to race. During the time of contracting, other distributors, including Time Warner Cable, DirecTV, AT&T and Charter Communications, had also declined to enter into agreements to carry ESN’s channels. On the other hand, having several companies making a similar decision does not always mean a company’s decision was non-discriminatory. ESN specified that the carriers had entered into contracts with “white-owned lesser-known networks during the same period.” A decision on this issue will be helpful to those wanting to bring racial discrimination claims under Section 1981, because clarity is needed regarding the appropriate standard and whether a motivating factor is enough.