Overshadowed by the presidential impeachment hearings that started on Wednesday, the United States Supreme Court heard oral arguments in a case could weaken an important civil rights and employment law.
Comcast v. National Association of African American-Owned Media and Entertainment Studios and Networks involves a case where Byron Allen alleges Comcast refused to carry channels produced by his company due in part to his status as an African-American. He alleges Comcast ran lesser-known channels from white-owned companies.
Allen brought his case under 42 USC 1981, a law passed after the Civil War during the Reconstruction Era, that prohibits racial discrimination in contracting. This law applies to employment discrimination. Comcast is arguing that the Allen must show race was a “but for” factor in their decision not to run his channels.
But for causation is considered a harder standard than either motivating factor or contributing factor causation. Requiring but for causation in 1981 cases would weaken the effect of the law and make it easier for employers to discriminate against African-Americans.
African-Americans are still covered under Title VII which only requires proving race is a motivating factor for employment discrimination. But Section 1981 has some important advantages over Title VII.
First of all Section 1981 does not require that employees file a charge of discrimination with a civil rights agency or exhaust administrative remedies. I believe this requirement amounts to private sovereign immunity for employers. As a practical matter, exhaustion of remedies requirement can serve to delay the resolution of cases and make it harder for individuals to pursue justice.
Secondly Section 1981 has a four year statute of limitations. Statute of limitations are much shorter and unclear under Title VII and state civil rights laws. Claimants also have 90 days to file a lawsuit after being issued a right to sue letter. Claimants are often left scrambling trying to find lawyers to file a timely complaint. When you have a clear four year statute of limitations it’s easier to bring a claim.
But if Section 1981 is weakened by the Supreme Court, the procedural advantages of bringing such a claim will be cancelled out by the weaker substantive law.
Comcast is the second major employment law case argued this term. In October there was some indication that the court may expand Title VII to at least cover sexual orientation. I had a more pessimistic prediction before oral argument. My feeling is that the court seems inclined to expand the scope of civil rights protections while at the same time weakening the protections in those laws.