U.S. Supreme Court: Mixed Motive Framework Rejected as a way to Establish Causation in §1981 Claims

By Collazo & Keil LLP

April 2, 2020

On March 23, 2020, the Supreme Court, in a unanimous decision, held that plaintiffs who bring actions under §1981 of the Civil Rights Act of 1866 bear the burden of showing that race was a “but-for” cause of their injury—that is, that their injury would not have occurred but for their race.

Previously, some circuit courts of the United States Courts of Appeals had held that plaintiffs suing under §1981 could maintain an action if they pleaded facts which plausibly showed that race played some role in the defendant’s decision-making process. This analysis is known as the “mixed-motive” framework. However, other Circuit Courts rejected this theory of causation under §1981 and instead asserted that a plaintiff must point to facts which plausibly show that racial animus was the “but-for” cause of the defendant’s conduct.

In Comcast Corp. v. National Ass’n of African American Media, the Supreme Court resolved the circuit split, holding that the “mixed-motive” framework is unavailable in §1981 claims, and the “but-for” burden remains with the plaintiff through the life of the lawsuit. The Supreme Court reached a similar decision in the context of ADEA claims in Gross v. FBL Financial Services, Inc.

In Comcast Corp., the Plaintiff, an African-American owned media company, sued Comcast under §1981, after Comcast refused to carry its channels and alleged that Comcast systematically disfavored 100% African-American-owned media companies. Comcast asserted that its refusal was based on a lack of demand for Plaintiff’s programming, bandwidth constraints, and its preference for news and sports programming, which Plaintiff’s media did not offer.

The District Court dismissed the complaint, finding that Plaintiff failed to plausibly show that “but-for” racial animus, Comcast would have contracted with Plaintiff. The Ninth Circuit reversed, holding that Plaintiff only needed to plead facts that plausibly showed that race played some role in the decision-making process. The Supreme Court rejected the use of the mixed-motive framework to establish causation, and remanded the case to the Ninth Circuit to evaluate using a “but-for” analysis.

The Supreme Court asserts that although the text of §1981 does not discuss causation expressly, it is nonetheless suggestive. In their view, the text of §1981 creates a counterfactual – “what would have happened if the plaintiff were white?” This counterfactual is equivalent to asking whether the defendant would have responded differently “but for” the plaintiff’s race and supports the use of the “but-for” standard to establish causation. Further, no other language in the statute signals altering this suggestion of a “but-for” standard.

The Supreme Court also looked to the larger structure and history of the Civil Rights Act of 1866 for guidance. Specifically, the Court notes that criminal sanctions for violations of the rights protected by the Civil Rights Act of 1866 required a showing that defendant’s challenged actions were taken on account of or by reason of race, which are terms that often indicate a “but-for” causation requirement. Further, the Civil Rights Act of 1866 noted that the common law serves as a backdrop for this legislation. Since the common law in 1866 treated a showing of “but-for” causation as a prerequisite to a tort suit, the Court saw this as a further piece of evidence that the “but-for” test was the contemplated standard.

Finally, the Court also cited a neighboring provision, 42 U.S.C. §1982, as support for the use of the “but-for” causation standard. Section §1982, which uses language nearly identical to §1981, requires a plaintiff to show that the defendant’s challenged conduct was because of race. In light of this nearly identical neighboring provision, the Court did not see a reason to demand less from a §1981 plaintiff when establishing causation.

The Supreme Court also rejected Plaintiff’s argument that the Court apply the mixed motive framework only at the pleading stage in §1981 actions. In the Court’s view this would be an act of “judicial adventurism” representing an amendment to the law rather than an interpretation.

The Supreme Court did not take a position on whether §1981 protects both outcomes and processes. Instead, it only established that a §1981 plaintiff must first show that he or she was deprived of a protected right and then, second, establish causation, which are two analytically distinct steps.

Impact on the Second Circuit

This decision will not have a large impact on the Second Circuit’s treatment of causation in §1981 claims because the Second Circuit already deemed that the “but-for” standard for causation is the appropriate test in these actions. Naumovski v. Norris, 934 F.3d 200, 213 (2d Cir. 2019); Miller v. City of Ithaca, New York, 758 Fed Appx 101, 104 (2d Cir. 2018).