Comcast Corp. v. National Assn. of African-American Owned Media , 206 L. Ed. 2d 356 ( 2020 )

(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
COMCAST CORP. v. NATIONAL ASSOCIATION OF
AFRICAN AMERICAN-OWNED MEDIA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 18–1171. Argued November 13, 2019—Decided March 23, 2020
Entertainment Studios Network (ESN), an African-American-owned tel-
evision-network operator, sought to have cable television conglomerate
Comcast Corporation carry its channels. Comcast refused, citing lack
of programming demand, bandwidth constraints, and a preference for
programming not offered by ESN. ESN and the National Association
of African American-Owned Media (collectively, ESN) sued, alleging
that Comcast’s behavior violated 42 U.S. C. §1981, which guarantees
“[a]ll persons . . . the same right . . . to make and enforce contracts . . .
as is enjoyed by white citizens.” The District Court dismissed the com-
plaint for failing plausibly to show that, but for racial animus, Comcast
would have contracted with ESN. The Ninth Circuit reversed, holding
that ESN needed only to plead facts plausibly showing that race played
“some role” in the defendant’s decisionmaking process and that, under
this standard, ESN had pleaded a viable claim.
Held: A §1981 plaintiff bears the burden of showing that the plaintiff’s
race was a but-for cause of its injury, and that burden remains con-
stant over the life of the lawsuit. Pp. 3–13.
(a) To prevail, a tort plaintiff typically must prove but-for causation.
See University of Tex. Southwestern Medical Center v. Nassar, 570
U.S. 338, 347. Normally, too, the essential elements of a claim remain
constant throughout the lawsuit. See, e.g., Lujan v. Defenders of Wild-
life, 504 U.S. 555, 561. ESN suggests that §1981 creates an exception
to one or both of these general principles, either because a §1981 plain-
tiff only bears the burden of showing that race was a “motivating fac-
tor” in the defendant’s challenged decision or because, even when but-
for causation applies at trial, a plausible “motivating factor” showing
is all that is necessary to overcome a motion to dismiss at the pleading
2 COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN
AMERICAN-OWNED MEDIA
Syllabus
stage. Pp. 3–12.
(1) Several clues, taken collectively, make clear that §1981 follows
the usual rules. The statute’s text suggests but-for causation: An or-
dinary English speaker would not say that a plaintiff did not enjoy the
“same right” to make contracts “as is enjoyed by white citizens” if race
was not a but-for cause affecting the plaintiff’s ability to contract. Nor
does the text suggest that the test should be different in the face of a
motion to dismiss. The larger structure and history of the Civil Rights
Act of 1866 provide further clues. When enacted, §1981 did not provide
a private enforcement mechanism for violations. That right was judi-
cially created, see Johnson v. Railway Express Agency, Inc., 421 U.S.
454, 459, but even in that era, the Court usually insisted that the legal
elements of implied causes of action be at least as demanding as those
found in analogous statutory causes of action. That rule supplies use-
ful guidance here, where a neighboring section of the 1866 Act uses the
terms “on account of” and “by reason of,” §2, 14 Stat. 27—phrases often
held to indicate but-for causation—and gives no hint that a different
rule might apply at different times in the life of a lawsuit. Another
provision provides that in cases not provided for by the Act, the com-
mon law shall govern, §3, ibid., which in 1866, usually treated a show-
ing of but-for causation as a prerequisite to a tort suit. This Court’s
precedents confirm what the statute’s language and history indicate.
See, e.g., Johnson, 421 U.S., at 459–460; Buchanan v. Warley, 245
U.S. 60, 78–79. Pp. 4–8.
(2) 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 mentioning “motivating factors.” Even if ESN
is correct that those amendments clarified that §1981 addresses not
just contractual outcomes but the whole contracting process, its claim
that a process-oriented right necessarily pairs with a motivating factor
causal standard is mistaken. The burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, also supplies no sup-
port for the innovations ESN seeks. Pp. 8–12.
(b) The court of appeals should determine in the first instance how
the operative amended complaint in this case fares under the proper
standard. P. 13.
743 Fed. Appx. 106, vacated and remanded.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, BREYER, ALITO, SOTOMAYOR, KAGAN, and KAVANAUGH,
Cite as: 589 U. S. ____ (2020) 3
Syllabus
JJ., joined, and in which GINSBURG, J., joined except for the footnote.
GINSBURG, J., filed an opinion concurring in part and concurring in the
judgment.
Cite as: 589 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–1171
_________________
COMCAST CORPORATION, PETITIONER v.
NATIONAL ASSOCIATION OF AFRICAN
AMERICAN-OWNED MEDIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 23, 2020]
JUSTICE GORSUCH delivered the opinion of the Court.
Few legal principles are better established than the rule
requiring a plaintiff to establish causation. In the law of
torts, this usually means a plaintiff must first plead and
then prove that its injury would not have occurred “but for”
the defendant’s unlawful conduct. The plaintiffs before us
suggest that 42 U.S. C. §1981 departs from this traditional
arrangement. But looking to this particular statute’s text
and history, we see no evidence of an exception.
I
This case began after negotiations between two media
companies failed. African-American entrepreneur Byron
Allen owns Entertainment Studios Network (ESN), the op-
erator of seven television networks—Justice Central.TV,
Comedy.TV, ES.TV, Pets.TV, Recipe.TV, MyDestina-
tion.TV, and Cars.TV. For years, ESN sought to have Com-
cast, one of the nation’s largest cable television conglomer-
ates, carry its channels. But Comcast refused, citing lack
of demand for ESN’s programming, bandwidth constraints,
and its preference for news and sports programming that
2 COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN
AMERICAN-OWNED MEDIA
Opinion of the Court
ESN didn’t offer.
With bargaining at an impasse, ESN sued. Seeking bil-
lions in damages, the company alleged that Comcast sys-
tematically disfavored “100% African American-owned me-
dia companies.” ESN didn’t dispute that, during
negotiations, Comcast had offered legitimate business rea-
sons for refusing to carry its channels. But, ESN con-
tended, these reasons were merely pretextual. To help ob-
scure its true discriminatory intentions and win favor with
the Federal Communications Commission, ESN asserted,
Comcast paid civil rights groups to advocate publicly on its
behalf. As relevant here, ESN alleged that Comcast’s be-
havior violated 42 U.S. C. §1981(a), which guarantees,
among other things, “[a]ll persons . . . the same right . . . to
make and enforce contracts . . . as is enjoyed by white
citizens.”
Much motions practice followed. Comcast sought to dis-
miss ESN’s complaint, and eventually the district court
agreed, holding that ESN’s pleading failed to state a claim
as a matter of law. The district court twice allowed ESN a
chance to remedy its complaint’s deficiencies by identifying
additional facts to support its case. But each time, the court
concluded, ESN’s efforts fell short of plausibly showing
that, but for racial animus, Comcast would have contracted
with ESN. After three rounds of pleadings, motions, and
dismissals, the district court decided that further amend-
ments would prove futile and entered a final judgment for
Comcast.
The Ninth Circuit reversed. As that court saw it, the dis-
trict court used the wrong causation standard when as-
sessing ESN’s pleadings. A §1981 plaintiff doesn’t have to
point to facts plausibly showing that racial animus was a
“but for” cause of the defendant’s conduct. Instead, the
Ninth Circuit held, a plaintiff must only plead facts plausi-
bly showing that race played “some role” in the defendant’s
decisionmaking process. 743 Fed. Appx. 106, 107 (2018);
Cite as: 589 U. S. ____ (2020) 3
Opinion of the Court
see also National Assn. of African American-Owned Media
v. Charter Communications, Inc., 915 F.3d 617, 626 (CA9
2019) (describing the test as whether “discriminatory intent
play[ ed] any role”). And under this more forgiving causa-
tion standard, the court continued, ESN had pleaded a via-
ble claim.
Other circuits dispute the Ninth Circuit’s understanding
of §1981. Like the district court in this case, for example,
the Seventh Circuit has held that “to be actionable, racial
prejudice must be a but-for cause . . . of the refusal to trans-
act.” Bachman v. St. Monica’s Congregation, 902 F.2d
1259, 1262–1263 (1990). To resolve the disagreement
among the circuits over §1981’s causation requirement, we
agreed to hear this case. 587 U. S. ___ (2019).
II
It is “textbook tort law” that a plaintiff seeking redress
for a defendant’s legal wrong typically must prove but-for
causation. University of Tex. Southwestern Medical Center
v. Nassar, 570 U.S. 338, 347 (2013) (citing W. Keeton, D.
Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law
of Torts 265 (5th ed. 1984)). Under this standard, a plaintiff
must demonstrate that, but for the defendant’s unlawful
conduct, its alleged injury would not have occurred. This
ancient and simple “but for” common law causation test, we
have held, supplies the “default” or “background” rule
against which Congress is normally presumed to have leg-
islated when creating its own new causes of action. 570
U.S., at 346–347 (citing Los Angeles Dept. of Water and
Power v. Manhart, 435 U.S. 702, 711 (1978)). That in-
cludes when it comes to federal antidiscrimination laws like
§1981. See 570 U.S., at 346–347 (Title VII retaliation);
Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176–
177 (2009) (Age Discrimination in Employment Act of
1967).
Normally, too, the essential elements of a claim remain
4 COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN
AMERICAN-OWNED MEDIA
Opinion of the Court
constant through the life of a lawsuit. What a plaintiff must
do to satisfy those elements may increase as a case pro-
gresses from complaint to trial, but the legal elements
themselves do not change. So, to determine what the plain-
tiff must plausibly allege at the outset of a lawsuit, we usu-
ally ask what the plaintiff must prove in the trial at its end.
See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992); Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S.
336, 346–347 (2005); Ashcroft v. Iqbal, 556 U.S. 662, 678–
679 (2009).
ESN doesn’t seriously dispute these general principles.
Instead, it suggests §1981 creates an exception to one or
both of them. At times, ESN seems to argue that a §1981
plaintiff only bears the burden of showing that race was a
“motivating factor” in the defendant’s challenged decision,
not a but-for cause of its injury. At others, ESN appears to
concede that a §1981 plaintiff does have to prove but-for
causation at trial, but contends the rules should be different
at the pleading stage. According to this version of ESN’s
argument, a plaintiff should be able to overcome at least a
motion to dismiss if it can allege facts plausibly showing
that race was a “motivating factor” in the defendant’s deci-
sion. ESN admits this arrangement would allow some
claims to proceed past the pleading stage that are destined
to fail later as a matter of law. Still, the company insists,
that is what the statute demands.
A
We don’t doubt that most rules bear their exceptions.
But, taken collectively, clues from the statute’s text, its his-
tory, and our precedent persuade us that §1981 follows the
general rule. Here, a plaintiff bears the burden of showing
that race was a but-for cause of its injury. And, while the
materials the plaintiff can rely on to show causation may
change as a lawsuit progresses from filing to judgment, the
burden itself remains constant.
Cite as: 589 U. S. ____ (2020) 5
Opinion of the Court
Congress passed the Civil Rights Act of 1866 in the after-
math of the Civil War to vindicate the rights of former
slaves. Section 1 of that statute included the language
found codified today in §1981(a), promising that “[a]ll per-
sons . . . shall have the same right . . . to make and enforce
contracts, to sue, be parties, [and] give evidence . . . as is
enjoyed by white citizens.” 42 U.S. C. §1981; Civil Rights
Act of 1866, 14 Stat. 27.
While the statute’s text does not expressly discuss causa-
tion, it is suggestive. The guarantee that each person is
entitled to the “same right . . . as is enjoyed by white citi-
zens” directs our attention to the counterfactual—what
would have happened if the plaintiff had been white? This
focus fits naturally with the ordinary rule that a plaintiff
must prove but-for causation. If the defendant would have
responded the same way to the plaintiff even if he had been
white, an ordinary speaker of English would say that the
plaintiff received the “same” legally protected right as a
white person. Conversely, if the defendant would have re-
sponded differently but for the plaintiff ’s race, it follows
that the plaintiff has not received the same right as a white
person. Nor does anything in the statute signal that this
test should change its stripes (only) in the face of a motion
to dismiss.
The larger structure and history of the Civil Rights Act of
1866 provide further clues. Nothing in the Act specifically
authorizes private lawsuits to enforce the right to contract.
Instead, this Court created a judicially implied private right
of action, definitively doing so for the first time in 1975. See
Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459
(1975); see also Jett v. Dallas Independent School Dist., 491
U.S. 701, 720 (1989). That was during a period when the
Court often “assumed it to be a proper judicial function to
provide such remedies as are necessary to make effective a
statute’s purpose.” Ziglar v. Abbasi, 582 U. S. ___, ___
(2017) (slip op., at 8) (internal quotation marks omitted).
6 COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN
AMERICAN-OWNED MEDIA
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With the passage of time, of course, we have come to appre-
ciate that, “[l]ike substantive federal law itself, private
rights of action to enforce federal law must be created by
Congress” and “[r]aising up causes of action where a statute
has not created them may be a proper function for common-
law courts, but not for federal tribunals.” Alexander v.
Sandoval, 532 U.S. 275, 286–287 (2001) (internal quota-
tion marks omitted). Yet, even in the era when this Court
routinely implied causes of action, it usually insisted on le-
gal elements at least as demanding as those Congress spec-
ified for analogous causes of action actually found in the
statutory text. See, e.g., Blue Chip Stamps v. Manor Drug
Stores, 421 U.S. 723, 736 (1975).
That rule supplies useful guidance here. Though Con-
gress did not adopt a private enforcement mechanism for
violations of §1981, it did establish criminal sanctions in a
neighboring section. That provision permitted the prosecu-
tion of anyone who “depriv[es]” a person of “any right” pro-
tected by the substantive provisions of the Civil Rights Act
of 1866 “on account of ” that person’s prior “condition of
slavery” or “by reason of ” that person’s “color or race.” §2,
14 Stat. 27. To prove a violation, then, the government had
to show that the defendant’s challenged actions were taken
“ ‘on account of ’ ” or “ ‘by reason of ’ ” race—terms we have
often held indicate a but-for causation requirement. Gross,
557 U.S., at 176–177. Nor did anything in the statute hint
that a different and more forgiving rule might apply at one
particular stage in the litigation. In light of the causation
standard Congress specified for the cause of action it ex-
pressly 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.
Other provisions of the 1866 statute offer further guid-
ance. Not only do we generally presume that Congress leg-
islates against the backdrop of the common law. Nassar,
570 U.S., at 347. The Civil Rights Act of 1866 made this
Cite as: 589 U. S. ____ (2020) 7
Opinion of the Court
background presumption explicit, providing that “in all
cases where [the laws of the United States] are not adapted
to the object [of carrying the statute into effect] the common
law . . . shall . . . govern said courts in the trial and disposi-
tion of such cause.” §3, 14 Stat. 27. And, while there were
exceptions, the common law in 1866 often treated a showing
of but-for causation as a prerequisite to a tort suit. See, e.g.,
Hayes v. Michigan Central R. Co., 111 U.S. 228, 241 (1884);
Smith, Legal Cause in Actions of Tort, 25 Harv. L. Rev. 103,
108–109 (1911); White, The Emergence and Doctrinal De-
velopment of Tort Law, 1870–1930, 11 U. St. Thomas L. J.
463, 464–465 (2014); 1 F. Hilliard, Law of Torts 78–79
(1866); 1 T. Sedgwick, Measure of Damages 199 (9th ed.
1912). Nor did this prerequisite normally wait long to make
its appearance; if anything, pleadings standards back then
were generally even stricter than they are in federal prac-
tice today. See generally, e.g., Lugar, Common Law Plead-
ing Modified versus the Federal Rules, 52 W. Va. L. Rev.
137 (1950).
This Court’s precedents confirm all that the statute’s lan-
guage and history indicate. When it first inferred a private
cause of action under §1981, this Court described it as “af-
ford[ing] a federal remedy against discrimination . . . on the
basis of race,” language (again) strongly suggestive of a but-
for causation standard. Johnson, 421 U.S., at 459–460
(emphasis added). Later, in General Building Contractors
Assn., Inc. v. Pennsylvania, 458 U.S. 375 (1982), the Court
explained that §1981 was “designed to eradicate blatant
deprivations of civil rights,” such as where “a private offeror
refuse[d] to extend to [an African-American], . . . because he
is [an African-American], the same opportunity to enter
into contracts as he extends to white offerees.” Id., at 388
(emphasis deleted; internal quotation marks omitted).
Once more, the Court spoke of §1981 using language—be-
cause of—often associated with but-for causation. Nassar,
570 U.S., at 350. Nor did anything in these decisions even
8 COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN
AMERICAN-OWNED MEDIA
Opinion of the Court
gesture toward the possibility that this rule of causation
sometimes might be overlooked or modified in the early
stages of a case.
This Court’s treatment of a neighboring provision, §1982,
supplies a final telling piece of evidence. Because §1982
was also first enacted as part of the Civil Rights Act of 1866
and uses nearly identical language as §1981, the Court’s
“precedents have . . . construed §§1981 and 1982 similarly.”
CBOCS West, Inc. v. Humphries, 553 U.S. 442, 447 (2008).
Section 1982 guarantees all citizens “the same right . . . as
is enjoyed by white citizens . . . to inherit, purchase, lease,
sell, hold, and convey real and personal property.” And this
Court has repeatedly held that a claim arises under §1982
when a citizen is not allowed “to acquire property . . . be-
cause of color.” Buchanan v. Warley, 245 U.S. 60, 78–79
(1917) (emphasis added); see also Jones v. Alfred H. Mayer
Co., 392 U.S. 409, 419 (1968); Runyon v. McCrary, 427
U.S. 160, 170–171 (1976). If a §1982 plaintiff must show
the defendant’s challenged conduct was “because of ” race,
it is unclear how we might demand less from a §1981 plain-
tiff. Certainly ESN offers no compelling reason to read two
such similar statutes so differently.
B
What does ESN offer in reply? The company asks us to
draw on, and then innovate with, the “motivating factor”
causation test found in Title VII of the Civil Rights Act of
1964. But a critical examination of Title VII’s history re-
veals more than a few reasons to be wary of any invitation
to import its motivating factor test into §1981.
This Court first adopted Title VII’s motivating factor test
in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
There, a plurality and two Justices concurring in the judg-
ment held that a Title VII plaintiff doesn’t have to prove
but-for causation; instead, it’s enough to show that discrim-
ination was a motivating factor in the defendant’s decision.
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Opinion of the Court
Id., at 249–250 (plurality opinion); see also id., at 258–259
(White, J., concurring in judgment); id., at 268–269 (O’Con-
nor, J., concurring in judgment). Once a plaintiff meets this
lesser standard, the plurality continued, the defendant may
defeat liability by establishing that it would have made the
same decision even if it had not taken the plaintiff ’s race
(or other protected trait) into account. In essence, Price Wa-
terhouse took the burden of proving but-for causation from
the plaintiff and handed it to the defendant as an affirma-
tive defense. Id., at 246.
But this arrangement didn’t last long. Congress soon dis-
placed Price Waterhouse in favor of its own version of the
motivating factor test. In the Civil Rights Act of 1991, Con-
gress provided that a Title VII plaintiff who shows that dis-
crimination was even a motivating factor in the defendant’s
challenged employment decision is entitled to declaratory
and injunctive relief. §107, 105 Stat. 1075. A defendant
may still invoke lack of but-for causation as an affirmative
defense, but only to stave off damages and reinstatement,
not liability in general. 42 U.S. C. §§2000e–2(m), 2000e–
5(g)(2)(B); see also Desert Palace, Inc. v. Costa, 539 U.S. 90,
94–95 (2003).
While this is all well and good for understanding Title
VII, it’s hard to see what any of it might tell us about §1981.
Title VII was enacted in 1964; this Court recognized its mo-
tivating factor test in 1989; and Congress replaced that rule
with its own version two years later. Meanwhile, §1981
dates back to 1866 and has never said a word about moti-
vating factors. So we have two statutes with two distinct
histories, and not a shred of evidence that Congress meant
them to incorporate the same causation standard. 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. To accept ESN’s invita-
tion to consult, tinker with, and then engraft a test from a
modern statute onto an old one would thus require more
10 COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN
AMERICAN-OWNED MEDIA
Opinion of the Court
than a little judicial adventurism, and look a good deal more
like amending a law than interpreting one.
What’s more, it’s not as if Congress forgot about §1981
when it adopted the Civil Rights Act of 1991. At the same
time that it added the motivating factor test to Title VII,
Congress also amended §1981. See Civil Rights Act of 1991,
§101, 105 Stat. 1072 (adding new subsections (b) and (c) to
§1981). But nowhere in its amendments to §1981 did Con-
gress so much as whisper about motivating factors. And
where, as here, Congress has simultaneously chosen to
amend one statute in one way and a second statute in an-
other way, we normally assume the differences in language
imply differences in meaning. Gross, 557 U.S., at 174–175;
see also Russello v. United States, 464 U.S. 16, 23 (1983).
Still, ESN tries to salvage something from the 1991 law.
It reminds us that one of the amendments to §1981 defined
the term “make and enforce contracts” to include “making,
performance, modification, and termination of contracts,
and the enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.” 42 U.S. C.
§1981(b). In all this, ESN asks us to home in on one word,
“making.” By using this particular word, ESN says, Con-
gress clarified that §1981(a) guarantees not only the right
to equivalent contractual outcomes (a contract with the
same final terms), but also the right to an equivalent con-
tracting process (no extra hurdles on the road to securing
that contract). And, ESN continues, if the statute ad-
dresses the whole contracting process, not just its outcome,
a motivating factor causation test fits more logically than
the traditional but-for test.
Comcast and the government disagree. As they see it, the
Civil Rights Act of 1866 unambiguously protected only out-
comes—the right to contract, sue, be a party, and give evi-
dence. When Congress sought to define some of these terms
in 1991, it merely repeated one word from the original 1866
Act (make) in a different form (making). No reasonable
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Opinion of the Court
reader, Comcast and the government contend, would think
that the addition of the present participle form of a verb
already in the statute carries such a radically different
meaning and so extends §1981 liability in the new direc-
tions ESN suggests. And, we are told, the statute’s original
and continuing focus on contractual outcomes (not pro-
cesses) is more consistent with the traditional but-for test
of causation.
This debate, we think, misses the point. Of course, Con-
gress could write an employment discrimination statute to
protect only outcomes or to provide broader protection.
But, for our purposes today, none of this matters. The dif-
ficulty with ESN’s argument lies in its mistaken premise
that a process-oriented right necessarily pairs with a moti-
vating factor causal standard. The inverse argument—that
an outcome-oriented right implies a but-for causation
standard—is just as flawed. Either causal standard could
conceivably apply regardless of the legal right §1981 pro-
tects. We need not and do not take any position on whether
§1981 as amended protects only outcomes or protects pro-
cesses too, a question not passed on below or raised in the
petition for certiorari. Our point is simply that a §1981
plaintiff first must show that he was deprived of the pro-
tected right and then establish causation—and that these
two steps are analytically distinct.*
Unable to latch onto either Price Waterhouse or the Civil
Rights Act of 1991, ESN is left to cast about for some other
——————
*The concurrence proceeds to offer a view on the nature of the right,
while correctly noting that the Court reserves the question for another
day. We reserve the question because “we are a court of review, not of
first view,” Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005), and do
not normally strain to address issues that are less than fully briefed and
that the district and appellate courts have had no opportunity to con-
sider. Such restraint is particularly appropriate here, where addressing
the issue is entirely unnecessary to our resolution of the case.
12 COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN
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hook to support its arguments about §1981’s operation. In
a final effort, it asks us to consider the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802, 804 (1973). Like the motivating factor test,
McDonnell Douglas is a product of Title VII practice. Under
its terms, once a plaintiff establishes a prima facie case of
race discrimination through indirect proof, the defendant
bears the burden of producing a race-neutral explanation
for its action, after which the plaintiff may challenge that
explanation as pretextual. Texas Dept. of Community Af-
fairs v. Burdine, 450 U.S. 248, 257–258 (1981). This bur-
den shifting, ESN contends, is comparable to the regime it
proposes for §1981.
It is nothing of the kind. Whether or not McDonnell
Douglas has some useful role to play in §1981 cases, it does
not mention the motivating factor test, let alone endorse its
use only at the pleadings stage. Nor can this come as a sur-
prise: This Court didn’t introduce the motivating factor test
into Title VII practice until years after McDonnell Douglas.
For its part, McDonnell Douglas sought only to supply a tool
for assessing claims, typically at summary judgment, when
the plaintiff relies on indirect proof of discrimination. See
411 U.S., at 802–805; see also Furnco Constr. Corp. v. Wa-
ters, 438 U.S. 567, 577 (1978); Malamud, The Last Minuet:
Disparate Treatment After Hicks, 93 Mich. L. Rev. 2229,
2259 (1995). Because McDonnell Douglas arose in a context
where but-for causation was the undisputed test, it did not
address causation standards. So nothing in the opinion in-
volves ESN’s preferred standard. Under McDonnell Doug-
las’s terms, too, only the burden of production ever shifts to
the defendant, never the burden of persuasion. See Bur-
dine, 450 U.S., at 254–255; Postal Service Bd. of Governors
v. Aikens, 460 U.S. 711, 715–716 (1983). So McDonnell
Douglas can provide no basis for allowing a complaint to
survive a motion to dismiss when it fails to allege essential
elements of a plaintiff’s claim.
Cite as: 589 U. S. ____ (2020) 13
Opinion of the Court
III
All the traditional tools of statutory interpretation per-
suade us that §1981 follows the usual rules, not any excep-
tion. To prevail, a plaintiff must initially plead and ulti-
mately prove that, but for race, it would not have suffered
the loss of a legally protected right. We do not, however,
pass on whether ESN’s operative amended complaint “con-
tain[s] sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face’ ” under the but-
for causation standard. Iqbal, 556 U.S., at 678–679. The
Ninth Circuit has yet to consider that question because it
assessed ESN’s pleadings under a different and mistaken
test. To allow that court the chance to determine the suffi-
ciency of ESN’s pleadings under the correct legal rule in the
first instance, we vacate the judgment of the court of ap-
peals and remand the case for further proceedings con-
sistent with this opinion.
It is so ordered.
Cite as: 589 U. S. ____ (2020) 1
G
Opinion , J.,
INSBURGof concurring
GINSBURG , J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–1171
_________________
COMCAST CORPORATION, PETITIONER v.
NATIONAL ASSOCIATION OF AFRICAN
AMERICAN-OWNED MEDIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 23, 2020]
JUSTICE GINSBURG, concurring in part and concurring in
the judgment.
I join the Court’s opinion requiring a plaintiff who sues
under 42 U.S. C. §1981 to plead and prove race was a but-
for cause of her injury.* In support of that holding, Comcast
advances a narrow view of §1981’s scope. Section 1981’s
guarantee of “the same right . . . to make . . . contracts,”
Comcast urges, covers only the final decision whether to en-
ter a contract, not earlier stages of the contract-formation
process.
The Court devotes a page and a half to this important is-
sue but declines to resolve it, as it does not bear on the
choice of causation standards before us. Ante, at 10–11. I
write separately to resist Comcast’s attempt to cabin a
——————
* I have previously explained that a strict but-for causation standard is
ill suited to discrimination cases and inconsistent with tort principles.
University of Tex. Southwestern Medical Center v. Nassar, 570 U.S. 338,
383–385 (2013) (dissenting opinion). I recognize, however, that our prec-
edent now establishes this form of causation as a “default rul[e]” in the
present context. Id., at 347 (majority opinion). See ante, at 3. Respond-
ent Entertainment Studios accepts that §1981 does not displace that
rule, arguing only that a plaintiff’s burden is lower at the pleading stage
than it would be at summary judgment or at trial. See Tr. of Oral Arg.
36–37.
2 COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN
AMERICAN-OWNED MEDIA
Opinion of GINSBURG, J.
“sweeping” law designed to “break down all discrimination
between black men and white men” regarding “basic civil
rights.” Jones v. Alfred H. Mayer Co., 392 U.S. 409, 432–
433 (1968) (internal quotation marks omitted; emphasis in
original).
Under Comcast’s view, §1981 countenances racial dis-
crimination so long as it occurs in advance of the final
contract-formation decision. Thus, a lender would not vio-
late §1981 by requiring prospective borrowers to provide
one reference letter if they are white and five if they are
black. Nor would an employer violate §1981 by reimbursing
expenses for white interviewees but requiring black appli-
cants to pay their own way. The employer could even “re-
fus[e] to consider applications” from black applicants at all.
Brief for United States as Amicus Curiae 21.
That view cannot be squared with the statute. An equal
“right . . . to make . . . contracts,” §1981(a), is an empty
promise without equal opportunities to present or receive
offers and negotiate over terms. A plaintiff hindered from
enjoying those opportunities may be unable effectively to
form a contract, and a defendant able to impair those op-
portunities can avoid contracting without refusing a con-
tract outright. It is implausible that a law “intended to . . .
secure . . . practical freedom,” Jones, 392 U.S., at 431 (quot-
ing Cong. Globe, 39th Cong., 1st Sess., 474 (1866)), would
condone discriminatory barriers to contract formation.
Far from confining §1981’s guarantee to discrete mo-
ments, the language of the statute covers the entirety of the
contracting process. The statute defines “make and enforce
contracts” to “includ[e] the making, performance, modifica-
tion, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual
relationship.” §1981(b). That encompassing definition en-
sures that §1981 “applies to all phases and incidents of the
contractual relationship.” Rivers v. Roadway Express, Inc.,
511 U.S. 298, 302 (1994). See also H. R. Rep. No. 102–40,
Cite as: 589 U. S. ____ (2020) 3
Opinion of GINSBURG, J.
pt. 2, p. 37 (1991) (“The Committee intends this provision
to bar all racial discrimination in contracts. This list is in-
tended to be illustrative and not exhaustive.”). In line with
the rest of the definition, the word “making” is most sensi-
bly read to capture the entire process by which the contract
is formed. American Heritage Dictionary 1086 (3d ed. 1992)
(“The process of coming into being”); 9 Oxford English Dic-
tionary 250 (2d ed. 1989) (“the process of being made”).
Comcast’s freeze-frame approach to §1981 invites the
Court to repeat an error it has committed before. In 1989,
the Court “rea[d] §1981 not as a general proscription of ra-
cial discrimination in all aspects of contract relations, but
as limited to” certain narrow “enumerated rights.” Patter-
son v. McLean Credit Union, 491 U.S. 164, 181. According
to Patterson, the right to “make” a contract “extend[ed] only
to the formation of a contract,” and the right to “enforce” it
encompassed only “access to legal process.” Id., at 176–178.
The Court thus declined to apply §1981 to “postformation
conduct,” concluding that an employee had no recourse to
§1981 for racial harassment occurring after the employ-
ment contract’s formation. Id., at 178–179.
Congress promptly repudiated that interpretation. In
1991, “with the design to supersede Patterson,” Congress
enacted the expansive definition of “make and enforce con-
tracts” now contained in §1981(b). CBOCS West, Inc. v.
Humphries, 553 U.S. 442, 450 (2008). Postformation racial
harassment violates §1981, the amendment clarifies, be-
cause the right to “make and enforce” a contract includes
the manner in which the contract is carried out. So too the
manner in which the contract is made.
The complaint before us contains allegations of racial
harassment during contract formation. In their negotia-
tions, Entertainment Studios alleges, Comcast required of
Entertainment Studios a series of tasks that served no pur-
pose and on which Entertainment Studios “waste[d] hun-
dreds of thousands of dollars.” App. to Pet. for Cert. 49a–
4 COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN
AMERICAN-OWNED MEDIA
Opinion of GINSBURG, J.
50a. The Court holds today that Entertainment Studios
must plead and prove that race was the but-for cause of
its injury—in other words, that Comcast would have acted
differently if Entertainment Studios were not African-
American owned. But if race indeed accounts for Comcast’s
conduct, Comcast should not escape liability for injuries in-
flicted during the contract-formation process. The Court
has reserved that issue for consideration on remand, ena-
bling me to join its opinion.