§1981 cases require but-for causation

[Video] Entertainment Studios Network (ESN), owned by an African-American, sued Comcast, a cable television conglomerate, claiming that Comcast's refusal to carry ESN's channels violated 42 USC §1981(a), which guarantees "[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." At the pleading stage, the case turned on which causation standard to use. The trial court ruled that the plaintiffs had to point to facts plausibly showing that racial animus was a "but for" cause of the defendant’s conduct. The 9th Circuit reversed, holding that a plaintiff must only plead facts plausibly showing that race played "some role" in the defendant’s decisionmaking process.

The US Supreme Court unanimously held that a §1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury, and that burden remains constant over the life of the lawsuit. The Court said, "It is 'textbook tort law' that a plaintiff seeking redress for a defendant’s legal wrong typically must prove but-for causation," and there is no exception for §1981. Although Congress in 1991 adopted a "motivating factor" causation test for Title VII cases, §1981 dates back to 1866 and has never said a word about motivating factors.