Byron Allen lawsuit, Supreme Court Sides With Comcast


Byron Allen lawsuit, Supreme Court Sides With Comcast.

The United States Supreme Court today ruled in a unanimous decision that Byron Allen and his company Entertainment Studios Network (ESN) bore the burden of showing that race was the “but-for” cause of injury in the racial discrimination case brought against Comcast. The decision pushes (remands) Allen and ESN’s case back to the lower court, where the case can proceed with a much higher threshold of proof. The crux of the case has been a distinction between race as a contributing factor in agreeing to entering into a contract and race as the sole or primary factor – and when the burden of proof comes into play.

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Allen and ESN had sued Comcast after the network declined to carry his network’s programming, citing capacity concerns and a lack of demand from viewers. But Allen and ESN alleged that the refusal to carry ESN’s slate of channels was motivated by race, and in violation of 42 U.S.C. §1981. The statute states, in part (as reprinted in the court’s decision) “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”

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The District Court initially dismissed the complaint, stating that there was insufficient proof that without racial bias Comcast would otherwise have entered into an agreement with ESN. The Ninth Circuit Court of Appeals then reversed that decision, maintaining that ESN only needed to show that race had played “some role” in the decision.

The syllabus for the decision notes that “ESN urges applying the ‘motivating factor’ causation test in Title VII of the Civil Rights Act of 1964 to §1981 cases. But this Court has already twice rejected such efforts in other contexts, see, e.g., Gross v. FBL Financial Services, Inc., 557 U.S. 167, and there is no reason to think it would fit any better here. Moreover, when that test was added to Title VII in the Civil Rights Act of 1991, Congress also amended §1981 without

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