SCOTUS: Race Discrimination Statute (42 U.S.C. § 1981) Requires Showing of “But For” Causation

In a recent decision, Comcast Corporation v. National Association of African American-Owned Media, 2020 WL 1325816 (U.S. March 23, 2020) (Gorsuch, J.), the U.S. Supreme Court held that 42 U.S.C. § 1981 – a federal statute that prohibits race discrimination in the making and enforcement of contracts – is subject to the “ordinary” tort rule that a plaintiff must first plead and prove that its injury would not have occurred “but for” the defendant’s unlawful conduct.

In reaching its conclusion, the Court looked to the statute’s text, structure, history, and other provisions of the Civil Rights Act of 1866. It rejected the plaintiff/respondent’s contention that the causation standard under § 1981 should be the “motivating factor” causation standard under Title VII of the Civil Rights Act of 1964, noting (inter alia) that Title VII’s enactment, as well as its employment of the “motivating factor” standard, came long after § 1981’s enactment.

Justice Ginsburg concurred in part.