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Supreme Court: § 1981 Suits Require Plaintiffs to Show Bias is ‘But For’ Cause of Injury

Resolving a split among the federal circuit courts on the issue, the U.S. Supreme Court has decided that a plaintiff bringing suit under 42 U.S.C. § 1981 bears the burden of showing that the plaintiff’s race was a “but for” cause of his its injury, and that this burden exists throughout the life of the case, including at the pleading stage. Comcast Corp. v. National Assn. of African American-Owned Media, No. 18-1171 (Mar. 23, 2020).

Supreme Court Holds that Claims for Intentional Discrimination Under Section 1981 Must Meet “But For” Causation Test

Section 1981 of the Civil Rights Act prohibits intentional race discrimination in all forms of contracting including employment. Lower courts have split as to whether a § 1981 plaintiff must prove that race was only one motivating factor among several, or whether a plaintiff must allege and prove that race was the “but for” cause of the challenged decision. In Comcast Corp. v. National Association of African American-Owed Media, et al, the Supreme Court recently resolved this split, holding that a plaintiff must prove that race was the “but for” reason for the decision.

Supreme Court Clarifies That But-For Causation Standard Applies to Section 1981 Claims Throughout Pendency of Litigation

In a landmark decision delivered on March 23, 2020, the U.S. Supreme Court held that a but-for causation standard applies to claims brought under 42 U.S.C. § 1981, the Civil Rights Act of 1886, and that this standard applies throughout the lifetime of the litigation, including the initial pleading stage. See Comcast Corp. v. National Association of African American-Owned Media, No. 18-1171, __ U.S. __ (2020).

Fifth Circuit Finds EEOC Did Not Have Authority to Issue 2012 Criminal History Guidance

On August 6, 2019, in State of Texas v. Equal Employment Opportunity Commission, the U.S. Court of Appeals for the Fifth Circuit ruled that the Equal Employment Opportunity Commission (EEOC) overstepped its limited rulemaking and enforcement power when it issued its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. While this ruling and its related injunction are limited on their face to the State of Texas, the decision opens the door to future challenges to the validity of the EEOC Guidance by other employers, in and outside the Fifth Circuit (Louisiana, Mississippi, and Texas).

Facebook Settles Claims Alleging Discriminatory Ad Targeting

On March 19, 2019, Facebook settled several lawsuits brought by the American Civil Liberties Union (ACLU), the Communications Workers of America, and various housing groups related to the placement of employment advertisements on Facebook’s website aimed at selected users based on their age or gender.

On the Basis of Hair: What Employers Should Know Now About Hairstyle Discrimination

Employers across the country are on watch after a recent flurry of news about hairstyle discrimination. Earlier this year, a black news anchor in Jackson, Mississippi, alleged she was fired after wearing “unprofessional” natural hair. Then, in February, the New York Human Rights Commission issued guidance—the first of its kind—prohibiting workplace grooming and appearance policies that limit “natural” hairstyles such as “cornrows” and “Afros.” The guidance focuses on race discrimination, but also recognizes that such policies can lead to discrimination based on religion, disability, age, and gender. What should employers outside of New York know about the current laws with respect to hairstyle discrimination?

The “People of Color” Label: Is It Time To Move The Needle (Again)?

Cindy-Ann Thomas and her guests Littler Shareholder Allan King, and author and historian Carroll “C.R.” Gibbs provide a multi-faceted examination of the label “People of Color.” In this podcast, Cindy-Ann, Allan, and C.R. address the following, head-on:

Can a single use of a racial slur constitute illegal discrimination? One court says . . . maybe.

After being sued for race discrimination, an employer/company filed a motion to dismiss the claims against it, arguing that a single use of the n-word was not sufficient to state a claim for hostile work environment.

First Circuit Refuses to Recognize a Section 1981 Private Right of Action for Damages Against State Actors

In a recent decision, Buntin v. City of Boston, the First Circuit Court of Appeals held that there is no implied private right of action for damages against state actors under 42 U.S.C. Section 1981. In reaching that conclusion, the court of appeals determined that Congress, when it amended the statute in 1991, did not overrule the Supreme Court of the United States’ 1989 holding in Jett v. Dallas Independent School District, 491 U.S. 701 (1989), that Section 1981 affords no such right of action and that 42 U.S.C. Section 1983 is the exclusive source for federal damages actions against state actors alleged to have violated Section 1981. The First Circuit’s ruling in Buntin is consistent with that of eight other federal appellate courts, and the Ninth Circuit remains the only federal appeals court to have held that Congress overruled Jett by amending the statute.

Isolated Racial Slur Triggers Hostile Work Environment Claim

One strike, you’re out?
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