The U.S. Supreme Court on Wednesday will hear a dispute that pits Comcast , America’s biggest cable provider, against an African-American TV mogul accusing it of racial bias because it declined to carry any of his channels.
“It’s just going to make it so that it’s going to be easier for the bottom feeders of the trial bar to shake down small businesses,” said Harned, whose organization filed an amicus brief in the case, “and say, ‘We’re going to sue you unless you give us money.’” In 2015, Entertainment Studios sued Comcast , alleging discrimination under the 1866 Civil Rights Act’s contract provision, known as Section 1981. A federal judge dismissed the case, but the U.S. Court of Appeals for the 9th Circuit reversed, ruling Entertainment Studios only had to allege race was a “motivating factor” under Section 1981 in order for the case to avoid being dismissed at an early point in the litigation.
“It’s incredibly hard for a plaintiff to win a race discrimination case and if you set the standard so high that you have to show ‘but for cause’ it’s just going to pull the rug out from underneath individuals who have to prove that,” Michael Foreman, director of the civil rights clinic at Penn State Law, told Yahoo Finance.
“‘But for’ causation is a very difficult standard to meet. If ‘but for’ causation is required for 1981, then many meritous race discrimination cases won’t be able to go forward,” said Chemerinsky, telling Yahoo Finance that most courts have not required “but for” causation though some have. Unlike the more recent Civil Rights Act of 1964, Section 1981 has no cap on damages. And unlike the Civil Rights Act, which doesn’t apply to businesses with fewer than 15 employees, Section 1981 applies to businesses of any size. “It seems apt in our view that Section 1981 would have a stricter proof burden given the breadth of potential damages provided under that law,” Vann noted. “Some employers depending on their size are faced with ‘bet the farm’ potential monetary liability.
Source: News Formal (newsformal.com)
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