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Why is racial discrimination now more difficult to prove under Section 1981 claims?

A recent Supreme Court ruling made it more difficult for plaintiffs to win racial discrimination lawsuits. Byron Allen, an African American man, founded the production studio Entertainment Studios Network (ESN) in 1993. In 2014, Allen started negotiating with the media conglomerate Comcast to have them host ESN's channels, but the two parties were unable to reach a final agreement.

In 2015, Allen filed a racial discrimination lawsuit against the Comcast Corporation alleging that he was denied the contract because ESN is a minority-owned business. He was seeking $20 billion in damages. Comcast argued that the denial was due to bandwidth constraints and a lack of programming demand for ESN's programming. Allen lost the Supreme Court ruling; the verdict has made it more difficult for future racial discrimination lawsuits to be successful. 

Arguing racial discrimination

Allen cited racial discrimination under Section 1981 of the Civil Rights Act of 1866 ("Act"). This section of the act was intended to ensure that Americans are afforded the same rights to make and enforce contracts regardless of race, color, and ethnicity. If Comcast had refused to sign a contract with ESN because it was a minority-owned company, they would have violated the Act.

The burden of proof

At the heart of the case stood the question: To what degree does ESN need to prove that racial discrimination caused the contract failure? Would ESN need to show that race was simply a motivating factor or that race was the central cause of the denial (known as the "but-for causation" test)? Up until this point, courts have been split on how to answer this question.

The Supreme Court decided that plaintiffs suing for violations of the Act must prove that race is the central cause of the denial. The Trump administration weighed in on this verdict, siding with Comcast. This high burden of proof sets a new precedent, and future plaintiffs will be required to meet this burden for all employment and contracting cases that allege racial discrimination.

Allen's case is now heading to the U.S. Court of Appeals for the Ninth Circuit, which will use the "but for" standard to determine whether racial bias was the motivating factor behind Comcast's denial of ESN.

How will this decision impact future plaintiffs and defendants?

Some argue that strengthening the burden of proof will harm victims of racial discrimination suing under the Act. It can be incredibly difficult, if not impossible, for victims to have clear proof that racial bias was the key motivating factor in a decision.

Others argue that this decision helped by solidifying the standard of proof necessary in these cases. In particular, many businesses supported the Court's decision since it may help them face less litigation.

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