In a recent decision (Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, No. 18-1171, 2020 WL 1325816, at *1 (U.S. Mar. 23, 2020)), the Supreme Court held that an employee who allege claims race discrimination under 42 U.S.C. § 1981 have the burden of proving their race was the “but for” cause of their injury. The High Court further added that § 1981 plaintiffs maintain this elevated burden throughout the entire lawsuit (at the pleading stage and at trial). This overturned the Ninth Circuit’s holding that an employee only needs to prove discrimination played “some role” in the decision-making process. The Comcast decision is also important because it makes it harder for employees to access the unlimited damages that are available for race discrimination under § 1981. (By contrast, Title VII caps the damages employees may recover, and only requires proof that race was a “motivating factor” in the decision to impose adverse action).
With its decision in Comcast, the Supreme Court has now held that employees must prove “but for” causation if they bring claims for age discrimination, Title VII retaliation and now § 1981 race discrimination. These decisions strengthen employers’ ability to defend themselves or compel favorable settlements in such cases.
