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  • Myndee M. Lee

Supreme Court Opinion Will Aid Employers in Defending Nonmeritorious Employment Law Claims

The U.S. Supreme Court issued an opinion (Comcast (Petitioner and Defendant) v. National Association of African American Owned Media (Plaintiff)) on March 23, 2020, that makes it more difficult for Plaintiffs to defeat employer’s motions to dismiss in actions brought under 42 U.S.C. 1981. Section 1981, among other things, bars all racial discrimination in the making and enforcement of contracts. Because there is an overlap between other employment-related civil rights legislation (Title VII) and Section 1981, employers should be aware of the implications of the recently issued opinion.


The Court found in Comcast that absent specific statutory language to the contrary, a civil rights plaintiff must demonstrate in his/her pleading that but for an employer’s unlawful conduct, the job-related claim asserted would not have occurred. It is not enough to simply allege that race was a motivating factor.


The lower court applied a different standard. When reviewing the pleadings of the plaintiff, it determined that plaintiff did not have to point to facts plausibly showing that racial animus was a but for cause of the defendant's conduct. Instead, the lower court held that a plaintiff must only plead facts plausibly showing that race played some role in the defendant's decision-making process. This is a more forgiving causation standard than the but for standard the Supreme Court enunciated on March 23, 2020.


To survive an employer’s motion to dismiss, a plaintiff must now in many instances articulate facts that demonstrate that the claim asserted would not have arisen but for demonstrable racial discrimination. Although criticized by some, my expectation is that the standard announced by the Supreme Court will aid employers in defending nonmeritorious employment law claims without incurring thousands of dollars in discovery costs.


Erwin Chemerinsky, one of the attorneys for Plaintiff in the Comcast case, wrote an article about the case and the ramifications. You can read his article here.

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