Supreme Court Developments in Discrimination Law

March 25, 2020
Within the last week, there have been two significant developments in cases before the Supreme Court that may affect employers.  In Comcast Corp. v. National Association of African American-Owned Media, the Supreme Court held that a plaintiff bringing a race discrimination claim under Section 1981 of the Civil Rights Act of 1866, must show that any injury would not have occurred “but for” the plaintiff’s race.  And in Peterson v. Linear Controls, the federal government urged the Court to grant certiorari to resolve a divide among the federal circuit courts of appeals in favor of a broader interpretation of the scope of adverse employment actions prohibited by Title VII of the Civil Rights Act of 1964.

In Comcast, in a unanimous decision authored by Justice Gorsuch, the Court vacated a Ninth Circuit ruling and found no reason to depart from the “general rule” that a “plaintiff bears the burden of showing that race was a but-for cause of its injury” and that the “burden itself remains constant” throughout the lawsuit.[1] In so doing, the Court explicitly declined to import Title VII’s “motivating factor” test[2] to Section 1981, emphasizing the text of the statutes and the statutes’ “two distinct histories[] and not a shred of evidence that Congress meant them to incorporate the same causation standard.”[3] 

Notably, the Court left open the question as to whether Section 1981 protects the right to equal contractual outcomes or an equal contracting process.[4] In a separate concurrence, Justice Ginsburg urged against limiting Section 1981 to contractual outcomes.[5] Justice Ginsburg asserted that “the language of the statute covers the entirety of the contracting process.” Otherwise, she explained, a defendant could discriminate under Section 1981 “so long as it occurs in advance of the final contract-formation decision.”[6]

In Peterson, as explained in an article published in Law360 by three members of the Firm’s Litigation Group, pending before the Supreme Court is a petition for certiorari presenting the question of what constitutes an “adverse employment action” under Title VII.  Some circuit courts of appeal have construed the statute restrictively, such as covering only “hiring, granting leave, discharging, promoting, or compensating.”  Others interpret the statute more broadly and hold that Title VII also covers actions such as “a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, [or] significantly diminished material responsibilities.”  The Supreme Court asked for the views of the federal government as to whether it should grant certiorari and, on March 20, the Solicitor General filed a brief, urging the Court to grant certiorari and resolve the circuit split in favor of broader Title VII protections. The Solicitor General argued that the Fifth Circuit’s narrow definition of “adverse employment action” that limits actionable conduct to “ultimate employment decisions” is inconsistent with Title VII’s text and purpose to “eliminate discriminatory practices and devices.”[7] The Solicitor General argued in favor of a broader definition that protects against discrimination in working conditions, including the location and nature of job assignments, the rotation of employees between worksites, and the availability of breaks. If the Court grants certiorari, Peterson will be heard in the Court’s next term, which begins in October.

The Court’s opinion in Comcast provides an important clarification of the causation standard applied to Section 1981 claims. Under the stricter but-for test adopted by the Court, plaintiffs must meet a higher burden to establish race discrimination for claims brought under the provision. Comcast is the first of several cases that may reshape the scope of discrimination claims.  Rulings remain forthcoming in Bostock v. Clayton County, Georgia; Altitude Express Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes Inc. v. U.S. Equal Employment Opportunity Commission, in which the Court is considering whether Title VII prohibits discrimination based on sexual orientation and gender identity. Our blog post on those cases can be found here. And, as discussed, if the Court grants certiorari in Peterson, it will issue an important ruling clarifying the scope of prohibited conduct under Title VII.
[1] Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, No. 18-1171, 2020 WL 1325816, at *4 (U.S. Mar. 23, 2020).
[2] Under the 1991 amendments to Title VII, a plaintiff who shows that discrimination was a motivating factor in the defendant’s challenged employment decision is entitled to declaratory and injunctive relief.  See 42 U.S.C. §§ 2000e–2(m).
[3] Comcast Corp., No. 18-1171, 2020 WL 1325816, at *6.
[4] Id., at *7. 
[5] Id., at *8. (Ginsburg, J., concurring).
[6] Id.
[7] Brief of the Solicitor General at 9, Peterson v. Linear Controls, No. 18-1401 (Mar. 20, 2020). 

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