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Earlier this year, the U.S. Supreme Court handed civil rights leaders a setback. In Comcast, the high court disagreed with many in the community in interpreting the nation’s oldest civil rights statute. In order to proceed in court, plaintiffs in bias suits needed to show racism to be more than just a motivating factor in decision-making. Instead, racism had to be the but-for cause of injuries. But what does that mean? Perhaps, as shown by a new decision involving Charter, the Supreme Court’s Comcast ruling isn’t entirely disastrous to those who assert being victim to discrimination.
The plaintiff in both the Comcast and Charter cases is the National Association of African-American Owned Media, owned by Byron Allen. The company controls various TV networks, which Allen has long asserted are not enjoying the kind of cable and satellite carriage given White-owned stations. He’s scored settlements in various cases — most recently with Comcast after the big March ruling — but he continues to be in court with Charter over an alleged violation of Section 1981 of Civil Rights Act of 1866. That would be the law that attempted to give practical freedom to former slaves by affording them equal treatment with respect to contracting. Allen alleges that Charter has refused offers far below what the cable giant was paying white-owned programmers and that its executives have made racist comments. One former vice president, for example, told protesters outside the company’s headquarters to “get off welfare.”
On Friday, U.S. District Court Judge George H. Wu decided that Byron Allen could proceed against Charter. According to the decision, the plaintiff has “pled enough in the way of facts to present a circumstantial case for intentional discrimination.”
Wu takes the handoff from the Supreme Court’s direction that discrimination plaintiffs must meet a “but-for” standard. He analyzes Charter’s contention that the standard means that when there are multiple explanations for conduct, it’s up to the plaintiff to allege facts tending to exclude non-discriminatory explanations. So in the world of cable television, Charter may have legitimate business reasons why picking up Allen’s TV channels criminal justice, cars and pets makes no sense. Charter argues that the onus is on Allen to make the case up front that these reasons weren’t the difference-maker. Stated another way, Allen needs to show that racism isn’t just one of the reasons why his channels aren’t getting carriage; it has to be the reason.
But Wu finds something less exacting in the “but-for” standard — at least at the pleading stage (meaning before discovery, before summary judgment motions, and before trial). He writes that some events have multiple but-for causes, meaning things that if different would have changed the outcome. He doesn’t think much of a defendant’s attempt to avoid liability merely by citing some innocent factor, and based on his review of past cases, finds that even limited allegations have been deemed sufficient by judges.
“Is deciding what channels or networks to carry a complicated decision, with potentially many factors at play?” asks Wu. “Yes, or at least one might presume so. But the allegations of discrimination underlying the decision(s) here are not difficult to understand.”
Wu adds that Charter hasn’t pointed to a past case to support the notion that the only thing that counts is whether Allen’s channels would be picked up if Allen was White. He writes, “While it is true that the Comcast decision is only about five months old, the but-for causation standard is no spring chicken. One would expect if this were truly the process a court was supposed to engage in at this procedural juncture in but-for causation standard cases, Charter would have been able to direct the Court to decisions doing just that. To the Court, therefore, this suggests that Charter is attempting to read more into the Comcast decision than actually results from it.”
Here’s the rest of Wu’s opinion, which separately gets into Ginsburg’s concurrence in the Comcast opinion. There, Ginsburg expressed the viewpoint — shrugged off by the other eight justices as not fully briefed and unnecessary to resolution — that Section 1981 dealt as much with contract formation as final outcomes. In other words, in Ginsburg’s view — and Wu seems to agree — the process by which cable companies pick up channels is covered by the civil rights law along with their decision to offer or deny carriage. If someone like Allen must go through hoops to get into a real negotiation, that may be enough. As Wu writes, “the refusal to extend to a person the same opportunity because of race to enter into a contract would fall within the statutory prohibition.”
Allen, in commenting about Wu’s latest decision, said, “Charter’s legal defense is the epitome of systemic racism. Charter will continue to lose this case, and I am going to make an example of them for all of America to see, because structural racism will not be tolerated.”
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