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Cable Exec Prods High Court on Racial-Bias Standard

A lawyer for a black media mogul shut out by Comcast pushed the Supreme Court on Wednesday to advance their racial-discrimination claims.

WASHINGTON (CN) — A lawyer for a black media mogul shut out by Comcast pushed the Supreme Court on Wednesday to advance their racial-discrimination claims.

“We’re not trying to create any more Bob Johnsons.” That is what Byron Allen says one Comcast executive told him during negotiations for the cable company to carry some stations under his company Entertainment Studios Networks. Johnson is the owner and founder of Black Entertainment Television.

“All that should be required at the pleading stage is motivating factor,” said Allen’s attorney, Erwin Chemerinsky, of the University of California, Berkeley.

“Whatever is the conclusion with regard to who ultimately has the burden of persuasion doesn’t change the pleading stage,” Chemerinsky added.

Though a federal judge in California dismissed Allen’s complaint, the Ninth Circuit reversed after finding it plausible that race was a motivating factor in the denial of Allen’s contract.

Representing Comcast, Gibson Dunn attorney Miguel Estrada said the proper standard is a “but-for” causation, meaning that Allen must prove that he would have gotten a contract but for his race. He said Allen is relying only on conclusory statements lacking in fact, which are not enough to support conclusions of prejudice.

Assistant to the Solicitor General Morgan Ratner, who argued for the government at the hearing in support of Comcast, gave justices a hypothetical situation.

“Someone applies to be an associate of a law firm,” Ratner said. “They get a letter back where they think there’s some sort [of] racial language in there, and they letter also says, ‘and, also, we’re not hiring you because you never went to law school.’ If that person files a complaint complaining about the racial aspect of that denial, I don’t think any court would say that there was any plausible way that that person was going to be hired as a law firm associate, regardless of their race, because they weren’t a lawyer to start with.”

Ratner said in this example, race could have been considered in the law firm’s decision, but the consideration had no ultimate effect on the result.

Justice Stephen Breyer aired some misgivings meanwhile on the hypothetical.

“It's true it wouldn't be a consideration where the applicant was a white person,” he aid. Indeed, it couldn't have been. And if the applicant is a black person, it could be. So this says — the statute says you should treat a white person and a black person alike. And so, I mean, that's their reasoning.”

Estrada argued that motivating-factor standards only edged their way into consideration after the Civil Rights Act of 1991. He said congressional amendments were made to this provision after the law was passed, but the failure to include a motivating-factor standard means that Congress intended to preserve the but-for standard.

Justice Sonya Sotomayor said she felt it would be enough to show cause if the company could prove with facts in their complaint that there was a racially motivated decision.

“I go back to the chief justice’s initial point, which is, if I come forward and show that race was a motivating factor, it can also be the but-for,” Sotomayor said. “Until a defendant is deposed and discovery is held, then that becomes an issue for the trier of fact of whether or not that motivating factor was a but-for cause. So, I think as long as you have enough in your complaint to show racial animus and a reasonable inference can be drawn that that’s a but-for cause, I think a plaintiff has done more than enough.”

But Estrada said the pleading stage demands more. “A plaintiff is required to allege facts, not conclusory recitation of the elements of the offense, that plausibly give rise to the inference,” he said.

Chemerinsky, who also represents the National Association of African American-Owned Media, said the federal anti-discrimination rule is clearly stated and lacks the words “because” or “based on.”

“Statutory language matters,” Chemerinsky said. “But this court has never created a requirement for but-for causation in the absence of such language. Section 1981 uses no such words.”

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