In a recent decision, the Supreme Court held that to succeed in a racial discrimination claim brought under the Civil Rights Act of 1866, or Section 1981 claim (as opposed to a claim brought under Title VII or under the Texas Human Rights Act), a plaintiff must show that race was the prime cause, not just one of many causes, of the plaintiff’s legal harm. Unlike much recent racial discrimination litigation, this is not an employment case. It rises from the law of contracts and tortious interference with those contracts.
This case is known as Comcast Corp. v. National Association of African American-Owned Media. However, torts and contracts are so fundamental to American law that the decision may have consequences for buyers and sellers of goods and services. For example, in the post-COVID-19 legal landscape, will independent contractors — gig workers who sell their work under the terms of a contract— have fewer legal protections from racial discrimination than employees who do similar work under the protections of common and statutory law? Will the Comcast decision further prompt employers to hire work out rather than building a permanent workforce?
The Future of Gig Workers and Independent Contractors
Whether independent contractor protections will turn out to be the cutting edge of racial discrimination law is anybody’s guess. But employers are already sensible to the benefits of the flexible and contingent workforce that independent contractors present. The disruptions in work and business triggered by COVID-19 containment efforts may make contracting even more attractive to employers once the dust has settled. Independent contractors, however, are far more vulnerable to employer misdeeds than employees are. More than ever, those who face racial discrimination issues should rely on the depth of legal expertise offered by the experienced attorneys at Kilgore & Kilgore.
Our Business and Employment Lawyers May be Able to Help Those Who Experience Racial Discrimination
If you believe that you or your business has suffered from racial discrimination or false allegations of racial discrimination, the Texas lawyers at Kilgore & Kilgore can help you assess your legal situation and fight for your rights. Click this link to learn more about workplace discrimination. We offer a free review of the facts of your case. Use this link to get the conversation started Contact Kilgore & Kilgore.
Comcast Corp. Refused to Contract with ESN – Was It Racial Discrimination?
African American entrepreneur Byron Allen owns Entertainment Studios Network (ESN), the operator of seven television networks. ESN had long sought to have Comcast Corp. carry its channels. Comcast Corp. refused, citing many reasons. ESN finally sued, claiming that Comcast Corp. systematically disfavored African American-owned media companies. ESN conceded that Comcast Corp. had offered legitimate business reasons for refusing to carry its channels but argued that these reasons were pretexts.
The trial court concluded that ESN failed to show that, but for racial animus, Comcast Corp. would have contracted with ESN. It dismissed the case. On appeal, the Ninth Circuit Court of Appeals reversed, on the rationale the plaintiff had to plead only that race played “some role” in the decision-making process. The Supreme Court sided with the trial court, opting for the “but for” test and sent the case back to the Ninth Circuit Court of Appeals for reconsideration under that standard of causation.
That may seem pretty far down in the legal weeds, but the bottom line is that it is much harder for someone claiming racial discrimination in a contract case to win under the “but for” standard than it would be under the “motivating factor” test.
A Tale of Two Racial Discrimination Laws
There are many federal and state anti-discrimination laws and each may have different standards for proving causation. The two laws at the heart of Comcast are 42 U.S.C. §1981, originally enacted during Reconstruction as part of the Civil Rights Act of 1866, and Title VII of the Civil Rights Act of 1964. Actually, only the first is at issue in Comcast, but how we understand its meaning is affected by more recent experience with the latter.
Civil Rights Law and Racial Discrimination
On its face, §1981 relates to rights and responsibilities that are specifically relevant to the conduct of a business, including the right to contract and to access the court system. The Civil Rights Act of 1866 granted citizenship to the freed slaves and provided the following guarantee, now codified as §1981(a):
“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
Title VII Relates to Employment Discrimination
On the other hand, Title VII relates specifically to employment. It prohibits employerment discrimination based on race, color, national origin, sex, and religion. Under the facts of Comcast, Title VII seems inapplicable. Byron Allen was not suing over employment rights. He and other litigants sued because Comcast Corp. refused to carry ESN channels.
There are other differences between the two statutes, including the length of the statute of limitations and the right of private action, but the critical one in Comcast is the standard of causation. In its analysis, the Supreme Court rejected the suggestion, attributed to Comcast Corp., that the “motivating factor” standard of Title VII should be imported into the understanding of §1981. The Supreme Court relied heavily on the historical differences between the two statutes, stating:
“[I]t’s hard to see what [the history of any of Title VII] might tell us about §1981. Title VII was enacted in 1964; this Court recognized its motivating factor test in 1989; and Congress replaced that rule with its own version two years later. Meanwhile, §1981 dates back to 1866 and has never said a word about motivating factors. So, we have two statutes with two distinct histories, and not a shred of evidence that Congress meant them to incorporate the same causation standard.”
The history of the application of the two different standards of causation in the two laws has been anything but a model of clarity. Title VII, for example, uses the “but for” standard for certain causes of action and at certain stages of Title VII lawsuits. Nonetheless, today, the law of the land is that to succeed in a §1981 claim, a plaintiff must show that racial bias is the principal, the “but for,” cause of the legal injury that is the subject of the lawsuit.
Racial Discrimination – How It Plays in Texas
The Texas Commission on Human Rights Act (TCHRA) is the Texas version of Title VII and was closely modeled after federal law. Generally, Texas courts look to federal precedents for guidance in determining the proper interpretation of the statute. Similarly, civil rights law in contexts other than employment also seems to rely on federal law. The big question is what is the impact of the Comcast decision likely to be in Texas courts and in the Fifth Circuit?
Predicting the future is perilous work. But the simple answer to that question appears to be that the bright line distinction between Title VII and §1981 on which the Supreme Court relies may represent a shift in the way §1981 is understood in Texas.
The Distinction Between Contract and Employment Law
Perhaps the distinction is not so clear. At least, that was what federal courts found in the past. An example is a 2005 case known as Johnson v. Crown Enterprises. The Fifth Circuit explicitly rejected the trial court’s rigid distinction between Title VII and §1981. The case turned on the statute of limitations rather than the standard of proof, but it continues to be cited as good law in many contexts.
An amicus brief filed in support of ESN makes a similar argument, grounding §1981 in the history of labor contract issues confronted by newly freed slaves. The brief quotes extensively from a Yale Law Journal note from 2006, which further advances the proposition that, when understood in context, §1981 could provide legal protection from racial discrimination for independent contractors who are not covered by Title VII. That, in fact, was the situation faced by Johnny Johnson in the Fifth Circuit case cited herein.
Learn More about Your Rights and Racial Discrimination
Click this link if you wish to know more about racial discrimination claims. For a free evaluation of the facts of your case, click here and let’s get the conversation started contact Kilgore & Kilgore.