In Comcast Corporation v. National Association of African American-Owned Media, (2020) 140 S.Ct. 1009, the Supreme Court resolved a circuit split regarding Plaintiff’s burden of proof when alleging a violation 42 U.S.C. § 1981. Reversing the Ninth Circuit, the Court found that a Plaintiff must show, at the pleading stage, that “race was a but for cause of [Plaintiff’s] injury”
The opinion explicitly declined to address the question of whether Section 1981 “guarantees not only the right to equivalent contractual outcomes . . . but also the right to an equivalent contracting process.” (emphasis original). In her concurrence, Justice Ginsburg outlined why Section 1981 applies to both the contractual outcomes and the contracting process. She relied on the language of the statute, legislative intent, and the outcome of a similar interpretation issue regarding Section 1981.
The statute guarantees an “equal ‘right . . . to make . . . contracts.’ ” Indeed, the broad purpose of the Civil Rights Act was to “ ‘break down all discrimination between black men and white men’ regarding ‘basic civil rights.’ ”(Emphasis original). As such, it would be illogical to limit Section 1981 to only contractual outcomes, effectively “condon[ing] discriminatory barriers to contract formation.”
Justice Ginsburg also noted, after an analogous case, Congress explicitly “repudiated” the Supreme Court’s interpretation of Section 1981 as not applying to “postformation conduct” and emphasized an expansive definition of to “make and enforce contracts.”