Byron Allen’s Comcast Bias Suit Upended at High Court

WASHINGTON (CN) — Comcast struck a blow against a black media mogul accusing it of discrimination as the Supreme Court ruled Monday that the Ninth Circuit applied the wrong standard in reviving the case.

The case surrounds a type of legal burden of proof that says a person must show the injury they suffered would not have incurred “but for” discrimination.

Comedian and media mogul Byron Allen poses for a 2019 picture in Los Angeles. (AP Photo/Chris Carlson)

Byron Allen, an entrepreneur who started producing as his long-running talk show took off in the 1990s, brought the underlying suit after Comcast to carry channels made by his company, Entertainment Studios Network.

Though Comcast cited low demand for that programing, broadband restraints and other complications, Allen says his race was the true motivation.

Referring to the owner and founder of Black Entertainment Television, one Comcast executive allegedly told Allen: “We’re not trying to create any more Bob Johnsons.”

Though a federal judge threw out Allen’s suit initially, the Ninth Circuit reversed after finding it plausible that that race was a “motivating factor” in Comcast’s decision.

The Supreme Court was unwavering, however, in rejecting this standard.

“Few legal principles are better established than the rule requiring a plaintiff to establish causation,” Justice Neil Gorsuch wrote for the court, following oral arguments in November.

Even in cases where courts used implied causes of action, Gorsuch noted that causation is still a prerequisite to move forward.

“In light of the causation standard Congress specified for the cause of action it expressly endorsed, it would be more than a little incongruous for us to employ the laxer rules ESN proposes for this Court’s judicially implied cause of action,” Gorsuch wrote, abbreviating the name of Allen’s network.

Though ESN found support for a motivating-factor test in Title VII of the Civil Rights Act of 1964, Gorsuch called this irrelevant to understanding the requirements of the Civil Rights Act of 1866, as codified at 42 U.S.C. §1981.

“Worse yet, ESN’s fallback position — that we should borrow the motivating factor concept only at the pleadings stage — is foreign even to Title VII practice,” Gorsuch wrote. “To accept ESN’s invitation to consult, tinker with and then engraft a test from a modern statute onto an old one would thus require more than a little judicial adventurism, and look a good deal like amending a law than interpreting one.”

Gorsuch emphasized that Allen must first show how he was deprived of a protected right, then establish causation.

“The difficulty with ESN’s argument lies in its mistaken premise that a process-oriented right necessarily pairs with a motivating factor causal standard,” Gorsuch wrote. “The inverse argument — that an outcome-oriented right implies a but-for causation standard — is flawed.”

Gorsuch’s opinion was unanimous, with the exception of a footnote that rankled Justice Ruth Bader Ginsburg.

In a concurring opinion, she took issue with Comcast’s argument that the 1866 law “countenances racial discrimination so long as it occurs in advance of the final contract-formation decision.”

“Thus, a lender would not violate §1981 by requiring prospective borrowers to provide on reference letter if they are white and five if they are black,” Ginsburg wrote. “That view cannot be squared with the statute.”

Erwin Chemerinsky, an attorney for Allen with the University of California, Berkeley School of Law, did not return a request for comment Monday, nor did Comcast’s attorney, Miguel Estrada with Gibson Dunn.

%d bloggers like this: