Comcast Corp. v. National Ass. of African American-Owned Media (18-1171)
argument 18-1171Comcast Corp. v. National Ass. of African American-Owned Media
Supreme Court of the United States
59 min
6 speakers
8 chapters
transcribed 7 days ago
official recording ↗
Transcript
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What is the Ninth Circuit’s holding on Section 1981 and why is it being challenged?
We'll hear argument first this morning in case eighteen eleven seventy one Comcast Corporation versus the National Association of African American Owned Media. Mr Estrano.
Mr Chief Justice, and may it please the court. The Ninth Circuit held in this case that a plaintiff may succeed on a Section nineteen eighty one claim merely by showing that race was a factor that was considered in the defendant's decision making, even if the decision would have made and was made for entirely appropriate business reasons having nothing to do with race. Solely on this basis, the Ninth Circuit saved the plaintiff's third complaint from dismissal. We submit that this decision is wrong and should be reversed for at least three reasons. The first is that it is contrary to this course decisions, such as Gross and Nasser, holding that but forecaucisation is the background rule that Congress must have presumed to have been adopted in all Federal statutes, unless the statute provides otherwise, which we submit Section nineteen eighty one does not, either as originally adopted in eighteen sixty six or as amended.
nineteen ninety one. Second, in nineteen ninety one Congress amended Title seven to provide for a motivating factor standard. but did not amend Section nineteen eighty one to provide the same, even though it amended Section nineteen eighty one in other respects at the same time. This all but conclusively shows that Section nineteen eighty one pro uh requires but for causation, as this court concluded in Gross and Nasser, with respect to the ADA and the retaliation provisions of Title seven. And third, uh It is uh if uh the Ninth Circuit is affirmed, it would be vastly easier to recover damages under Sections nineteen eighty one judicially implied cause of action than under any express cause of action actually enacted by Congress under any federal anti discrimination law.
Um and thus affirming the Ninth Circuit would effectively mean that Section nineteen eighty one would completely display is the carefully tailored regime that Congress has devised in Title seven to govern employment discrimination cases. No well advised plaintiff would ever sue under Title seven in any employment case.
Council, it I I wonder if the distinction they're fighting over is is somewhat academic. I I mean in in the a contract negotiation process, for example, there may be several steps along the way. And if at one of those steps there's a Uh Clear racial and Excuse me, animus. evident uh and that you know the process continues on and at the end of the day the contract is denied. it it may be hard to prove but for causation. On the other hand, uh it's also uh uh hard to ignore the part the the step in which there was clearly evident racial animus. And It may be a reasonable argument or or excuse me allegation that that animus continued through even though manifested only at one stage of the process.
Well all complaints are different, Mr. Chief Justice, and I don't rule out the possibility that a complaint may allege such an expression of animus that it could actually imply that the animus continued until the end, such that it the the complaint does allege but for uh causation. Now the plaintiffs from the motion to to dismiss in this case to the Ninth Circuit have stuck their case on the proposition that they are alleging that race was a motivating factor and a motivating factor um only, um, and they were not prepared to prove but for causation. Um and uh you know we contend that that is wrong under Gross and Nasser. Now we don't think that this complaint actually passes Under any standard, as we made clear.
But of course, it is also the case that we have cases like Gross and Nasser in which it is evident from the record that some consideration of the protected factor um was made in the employment context. And at the end, the jury still had to be instructed that it had to determine whether that was A determinative factor in the decision making. And in all of these cases, you know, the court has already determined that the that the fact finder will have to make the decision, as Grove said, whether that factor not only played a role, but also had, as as Justice Thomas put it in Groves, a determinative effect in the decision making.
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Chapters
8 chapters
1
What is the Ninth Circuit’s holding on Section 1981 and why is it being challenged?
0:00–8:54
2
How do the parties argue whether Section 1981 requires a “but‑for” causation standard?
8:54–16:17
3
Why do the respondents claim that a “motivating factor” is enough at the pleading stage?
16:17–23:24
4
What role do the Supreme Court’s precedents on burden‑shifting (Price Waterhouse, McDonnell Douglas) play in this dispute?
23:24–30:48
5
How do the Justices apply Twombly and Iqbal to determine if the complaint is plausibly sufficient?
30:48–37:25
6
What hypothetical examples illustrate the difference between “motivating factor” and “but‑for” causation?
37:25–44:11
7
Why might the Court consider vacating and remanding the case rather than deciding the merits now?
44:11–50:51
8
What is the final takeaway on how Section 1981 should be interpreted for contract‑discrimination claims?
50:51–59:29