NT Lakis lawyers have filed a friend-of-the-court brief with the U.S. Supreme Court in a case involving the burden of proof standard that courts must apply in ruling on race discrimination claims brought under Section 1981 of the Civil Rights Act of 1866. “Section 1981” is a Civil War-era federal law barring intentional race discrimination in the making and enforcement of contracts, and for several decades now has been interpreted to apply in the employment context. Section 1981 claims are often raised in conjunction with race discrimination claims brought under Title VII of the Civil Rights Act of 1964.

Our brief in Comcast v. NAAAOM, No. 18-1171, urges the High Court to reverse a 2018 decision by the U.S. Court of Appeals for the Ninth Circuit that permitted a Section 1981 plaintiff to proceed under the so-called “motivating factor” test, a burden-of-proof standard applicable to race discrimination claims brought under Title VII that makes it easier for a plaintiff to prevail.

We contend instead that Section 1981’s plain text and the rationale applied by the Supreme Court in other employment discrimination cases support a finding that the more stringent “but-for” causation standard applies to 1981 claims. The but-for standard requires a plaintiff to prove the harm would not have occurred but for the defendant’s discriminatory conduct, whereas the motivating factor standard requires only that the plaintiff show that discrimination was a factor, even if the employer can show that there were legitimate reasons for taking adverse action.

A copy of our brief in Comcast v. NAAAOM is available here.

Members of the Center for Workplace Compliance (CWC) can read more here.