Supreme Court will hear a major attack on anti-discrimination law

This will end badly.


The Supreme Court announced on Monday that it would hear Comcast Corp. v. National Association of African American-Owned Media, which seeks to undercut one of the country’s oldest civil rights laws.

Given the court’s Republican majority, this case is likely to end badly for civil rights plaintiffs. Though it is an open question whether the court will make a surgical cut against a particular anti-discrimination law or go so far as to nuke a major prong of American anti-discrimination litigation.

Comcast involves a cable company that allegedly refused to carry a black-owned television studio’s networks in violation of a post-Civil War statute barring race discrimination in contracts.

Companies are rarely monoliths, and when a company takes an adverse action against a person of color (or another company owned by people of color) they often have a variety of reasons for doing so. Some executives, for example, may be driven by racist motives, while others may act for legitimate business reasons. For this reason, the law permits what are known as “mixed-motive” suits, which allow civil rights plaintiffs to prevail in some cases where they face discrimination for a combination of both legitimate and illegal reasons.


The Comcast case asks the Supreme Court to hold that claims under the Reconstruction-era ban on contract discrimination must show “but-for causation.” That is, for a plaintiff to prevail, they must show that, in the absence of racist motivations, they would have been treated differently. That is often very difficult to prove, as it essentially requires plaintiffs to prove that events would have been different had everyone been living in an alternative reality.

Under current law, if a plaintiff shows that the defendant had mixed motives, the burden of proof shifts to the defendant to show that they would have made the same decisions in the absence of invidious motives. If the defendant cannot meet this burden of proof, they may be held liable for their actions.

Even before the Supreme Court took a hard right turn under President Donald Trump, its Republican majority was very hostile to mixed-motive suits. Indeed, the court already eliminated these suits in age discrimination cases and in cases alleging retaliation against people who allege employment discrimination. So it is exceedingly likely that there will be five votes to eliminate them under the Reconstruction era law.

The open question at hand is whether the Supreme Court will also eliminate mixed-motive suits in all civil rights contexts. Should it do so, it would touch off a legal earthquake that would leave many victims of discrimination without relief.

This would also be entirely consistent with the Roberts Court’s dismissive attitude towards allegations of race discrimination.