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Supreme Court to Decide Standard of Proof in Section 1981 Discrimination Cases

The U.S Supreme Court has announced that it will hear argument on a significant discrimination issue; what is the standard for proving bias in Section 1981 cases?

The matter involves a black-owned media company suing Comcast for failing to carry its programming.  Throughout the years while Comcast has denied Entertainment Studios request, the cable company has launched numerous lesser-known white-owned channels. 

Entertainment Studios has alleged discrimination in violation of Section 1981. Section 1981 prohibits race discrimination in a variety of settings, including employment.

A core issue in this case is what must an aggrieved party show in order to prove discrimination; That bias is one factor that led to the discriminatory decision, or that it is the “but/for” cause of the discrimination (i.e. that bias is predominant reason behind the discriminatory action, without it discrimination would not have occurred).  Such distinction is critical. The “but/for” test is narrow and allows discrimination to creep into decision-making. By allowing companies to show another reason may exist for discriminatory conduct, even though “some” bias may have influenced the decision-making process, unacceptable biases are allowed to continue.

While Title VII specifically prohibits discrimination where bias is a motivating factor, Section 1981 does not contain such language.  Entertainment Studios asserts that this is in order to protect discrimination victims, and the failure to include similar verbiage in Sec. 1981 should not be interpreted as an effort to construe its impact narrowly.  In the upcoming months, the Supreme Court will decide this critical issue.

At Buckley Beal, we are committed to fighting discrimination.  As such, we will be watching developments in this matter closely.  For more information or if you are concerned about employment discrimination, please contact our dedicated Atlanta employment attorneys for an immediate consultation.  

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