Supreme Court Addresses Standards Of Proof In Discrimination Cases

By Kamer Zucker Abbott

April 8, 2020

In the midst of the COVID-19 pandemic, the U.S. Supreme Court has continued to issue opinions in pending cases. Two recent decisions are particularly relevant to employers.

First, in Comcast Corp. v. National Association of African American-Owned Media, the Court addressed the standard of proof for racial discrimination claims under 42 U.S.C. § 1981. While the Comcast case was about contractual discrimination (whether Comcast’s refusal to carry the plaintiffs’ channels was discriminatory), employee plaintiffs often pair Section 1981 claims with Title VII claims as an alternative theory of recovery in racial discrimination employment lawsuits. They do so because Section 1981 does not carry a cap on damages as Title VII does. Accordingly, the Court’s decision in Comcast is important to employers.

At issue in Comcast was what a plaintiff must prove under Section 1981 to prevail. Does the plaintiff only have to prove that race was a motivating factor in the defendant’s decision (as is the case in a Title VII case)? Or does the plaintiff have to prove that racial animus was the “but for” cause of the defendant’s conduct? Fortunately for employers, the Supreme Court determined that the higher “but for” standard is required for Section 1981 claims.  

Similarly, in Babb v. Wilkie, the Court considered what type of proof a plaintiff must put forth under the portion of the Age Discrimination in Employment Act (ADEA) that applies to federal sector employees. Here, however, the Court reached a very different result. It determined that the ADEA’s language, which requires that personnel actions affecting federal sector employees be free from any age discrimination, permits a lesser standard of proof but that to obtain certain remedies, like reinstatement or damages, a higher standard of proof must be met. Private employers and state and local government employers should note that the higher “but for” standard still applies to ADEA claims brought by their employees.