Supreme Court Holds that Claims for Intentional Discrimination Under Section 1981 Must Meet “But For” Causation Test

By Michael Warner and Caroline Kane - Franczek P.C.

March 26, 2020

Section 1981 of the Civil Rights Act prohibits intentional race discrimination in all forms of contracting including employment. Lower courts have split as to whether a § 1981 plaintiff must prove that race was only one motivating factor among several, or whether a plaintiff must allege and prove that race was the “but for” cause of the challenged decision. In Comcast Corp. v. National Association of African American-Owed Media, et al, the Supreme Court recently resolved this split, holding that a plaintiff must prove that race was the “but for” reason for the decision.  In other words, “but for” the defendant’s unlawful conduct, the decision would not have occurred.

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