Joshua R. Goodbaum, partner with Garrison, Levin-Epstein, Fitzgerald & Pirrotti, P.C.

Covid-19 has unsettled virtually every institution in American life, and the courts unfortunately are no exception. The federal and state courthouses in Connecticut have largely closed to the public, although they remain "open for business," at least in a virtual sense. And this judicial tumult has climbed all the way to the hallowed halls of the U.S. Supreme Court, which has indefinitely postponed oral arguments it previously scheduled for March and April 2020—including in several newsworthy cases, such as disputes about President Trump's tax returns. But like the Postal Service, neither rain, nor snow, nor sleet, nor apparently Covid-19 will stop the Supreme Court from issuing opinions.

And so this past Monday, March 23, the court issued opinions in five cases argued earlier in its 2019 Term. Of those five, the most relevant for employment and civil rights lawyers is the court's opinion in Comcast Corp. v. National Ass'n of African American-Owned Media (No. 18-1171).

The case began with African American media entrepreneur Byron Allen and his company, Entertainment Studios Network (ESN), who tried for years—without success—to get Comcast to carry ESN's programming. Apparently convinced that Comcast's refusal was a product of his race, Allen sued Comcast in federal court in California. He claimed that Comcast's refusal to negotiate with ESN violated the first section of the Civil Rights Act of 1866, a Reconstruction-era law which provides that "[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." 42 USC § 1981(a). The legal issue presented to the Supreme Court concerned the standard of proof necessary for a plaintiff to prevail under § 1981: Does the plaintiff only have to show that his race played "some role" in the defendant's action, or does the plaintiff instead have to make the more difficult showing that his race was a "but-for" cause of the defendant's action? In other words, must race merely be a "motivating factor," or does it need to be a "determinative factor"?

By way of background, civil rights laws generally require as a standard of proof either "motivating factor" or "determinative factor." The landmark federal employment discrimination law—Title VII of the Civil Rights Act of 1964—illustrates this distinction. In order for an employee to prevail under Title VII, she must show that her race (or sex or religion or national origin) was a "motivating factor" of her employer's adverse action—meaning that her race played "some role" in her employer's action against her. However, the employer then may seek to establish as an affirmative defense that it would have taken the same action even absent the protected characteristic—that is, that the employee's protected characteristic was not a "determinative factor" of the action. And "determinative factor," in turn, is just another way of saying "but-for" cause—something without which the challenged action would not have occurred.

Over the last 15 years, the Supreme Court has promoted "determinative factor" as the definitive standard of proof in federal civil rights law. That is the conventional wisdom after the court's opinions in Gross (2009) (about the Age Discrimination in Employment Act) and Nassar (2013) (about Title VII's anti-retaliation provision): if the statute prohibits an employer's action "because of" an employee's protected characteristic or conduct, then the plaintiff will need to satisfy the "determinative factor" test. But what happens when the statutory text does not say the words "because of," such as in § 1981? What standard of proof governs then?

In the Comcast case, in an opinion authored by Justice Gorsuch, the court unanimously holds that the § 1981 plaintiff still has to satisfy the "because of" test—that is, that a defendant violates the statute only when the plaintiff's race is at least one "but-for" cause of the defendant's challenged action. The court reaches that conclusion based on the text of the statute, reasoning that the explicit comparison to "white citizens" means that the plaintiff has to show that race made a difference in the defendant's actions. The court relies further on what it describes as the "'textbook tort law' that a plaintiff seeking redress for a defendant's legal wrong typically must prove but-for causation."

Although Comcast is certainly not helpful to employees pursuing claims under § 1981, it is not a death knell either, for at least a few reasons. To start, we should avoid exaggerating the burden that the "but-for" standard imposes. The default rule in tort cases (as the court noted), but-for causation simply means a cause that made a difference. Race—in the case of a § 1981 claim—can be one of many causes of a defendant's challenged action; as long as it is one cause-in-fact, it is actionable. Indeed, as no less a friend of corporate defendants than Chief Justice Roberts proclaimed in 2011, but-for causation is practically "no limit at all."

Even under federal law, though, employees who allege race discrimination can still seek a remedy under Title VII, where they only need to prove that their race was a "motivating factor," not a "determinative" one. (Note, however, that Title VII caps awards of non-economic damages, which § 1981 does not.) Likewise, under our state's law, the prohibition on employment discrimination and retaliation enshrined in the Connecticut Fair Employment Practices Act only requires proof of a "motivating factor."

The U.S. Supreme Court will take another crack at standards of proof in employment cases later this Term when it hands down its decision in Babb v. Wilkie, which asks essentially the same question as Comcast, albeit about the federal employee section of the Age Discrimination in Employment Act. No one should be surprised if the Babb decision offers the same result as the Comcast one. But no one who cares about the rights of Connecticut's employees should panic either.