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The U.S. Supreme Court will be examining standards in racial discrimination lawsuits.
On Monday, the justices of the high court announced that they had accepted for review a case claiming discrimination in contracting against Comcast in alleged violation of section 1981 of the Civil Rights Act. The $20 billion lawsuit comes from Byron Allen’s Entertainment Studios Network, an African American owned programmer upset over the way that cable TV distributors refused to make good offers to license his channels. Comcast — as well as Charter, in a separate case — petitioned for review after Byron Allen’s company survived scrutiny at the Ninth Circuit Court of Appeals.
In Comcast’s petition, handled by Miguel Estrada at Gibson Dunn, the cable company argued that in order to carry a discrimination suit, plaintiffs must show in pleadings that racial animus was the motivating factor leading to a programming decision. The lower courts chose a lower bar at the initial phase of the case by accepting the suits could move forward so long as plaintiffs demonstrated discriminatory intent as a factor.
The question posed by this case: Does a claim of race discrimination under 42 U.S.C. § 1981 fail in the absence of but-for causation?
The high court still hasn’t announced whether it would also take up Charter’s petition, which also questioned discrimination standards at the pre-discovery phase of litigation but also included a provocative First Amendment issue: Does a cable operator have a First Amendment right to include racial considerations among the factors it evaluates in making editorial determinations as to what programming to carry? The lower courts rejected any First Amendment shield with the conclusion that a chosen selection of networks on the cable dial doesn’t convey any editorial message. That petition drew attention after Charter’s attorneys invoked the musical Hamilton in support of review.
“The musical Hamilton is notable for its creator’s decision to cast exclusively minority actors as the Founding Fathers,” wrote Charter’s legal team. “A refusal to contract with a white actor to play George Washington cannot be made an antidiscrimination violation without profoundly undermining First Amendment values.”
No word quite yet on whether the high court wishes to examine this issue. Nevertheless, the decision by the Supreme Court to tackle the Comcast case likely will impact the Charter dispute (where $10 billion in alleged damages is asserted).
Among the amicus briefs submitted is one from the Chamber of Commerce, which has opined that the Ninth Circuit rulings allowing these cases to move forward “threaten[s] to disrupt employment discrimination law” and may impose significant costs and burdens on companies defending claims. “Employment decisions are inherently subjective in some measure,” continues the Chamber brief. “So it will be relatively easy for a plaintiff to allege that discrimination was a motivating factor. Then the defendant effectively has the burden of proving a negative — that discrimination was not a factor. Proving a negative is always difficult and it will be especially difficult when allegations of mixed motives are swirling about.”
In a statement, Comcast expressed hope the Supreme Court “will reverse the Ninth Circuit’s unusual interpretation of the law and bring this case to an end.”
Allen responds, “Today’s announcement from the U.S. Supreme Court is historic, and we are on the right side of history.”
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