Allen, who is black, alleges that Comcast discriminated against him in its refusal to carry cable channels by his company, Entertainment Studios Networks. Comcast said it made a business decision to reject Allen’s general-interest channels based on what it thought viewers want.
The question before the court is whether, as Comcast contends, Allen must show that race was the sole motivating reason for Comcast’s decision to reject his channels.
A victory for Comcast could make it harder for victims of discrimination to sue employers, landlords and other businesses using the measure, said Kristen Clarke, president and executive director of the National Lawyers’ Committee for Civil Rights Under Law. It could force victims to prove that racial discrimination was the only factor in any disputed contracting decision, she said.
“There’s a whole lot at stake in this case. It’s much bigger than Comcast and Allen,” Clarke said. “This is about real victims of discrimination who should not face additional hurdles in getting the opportunity to be heard in court. The implications for African Americans and other marginalized communities of color are grave.”
The Lawyers’ Committee and the NAACP Legal Defense and Educational Fund filed separate briefs this week in support of Allen — but did not take a position on the merits of his claims. The Leadership Conference on Civil and Human Rights and the NAACP were among the more than two dozen signatories.
Section 1981 of the Civil Rights Act of 1866 was designed to safeguard equal opportunities for Americans to work, bank, shop, rent or buy a home, and become entrepreneurs without racial discrimination, the civil rights groups said. It protects a broad swath of people, including independent contractors in the gig economy and consumers racially profiled by retailers, in scenarios not covered by other major civil rights statutes.
A Supreme Court ruling in favor of Comcast would “cut the heart out of this bedrock statute,” said Clarke, calling it the most important civil rights case to be heard by the court this term.
While the case involves the unusual circumstance of a black billionaire alleging racial discrimination, the outcome could undermine discrimination claims brought by low- and moderate-income African Americans and other people of color, said Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund.
“An adverse ruling could make our oldest civil rights statute virtually impotent in all but a narrow sliver of cases,” Ifill said.
The law, she said, was designed to “place African Americans on equal footing with white Americans and to remove the vestiges of slavery by outlawing conduct not only by states, but also by private parties, that would prevent African Americans from developing the means to work, build wealth, have access to the justice system to vindicate their rights, and live freely after enslavement.”
Comcast’s arguments are “dangerous,” Ifill said, because corporations could protect themselves from liability simply by pointing to a race-neutral reason that supported a discriminatory decision — even if racism “infected” the decision or denial.
Comcast denied that its position would set back civil rights protections — or that it discriminated against Allen.
Comcast spokeswoman Sena Fitzmaurice said the company did not believe Allen’s channels, including Comedy.TV, Recipe.TV, MyDestination.TV, Cars.TV and Pets.TV, would draw strong viewership. She pointed out that Comcast carried other black-owned channels with programming aimed at African American audiences, including Revolt, the music network launched by Sean Combs, and Aspire, owned by Magic Johnson Enterprises.
“We are not seeking to roll back the civil rights laws,” Fitzmaurice said. “We have been forced to appeal this decision to defend against a meritless $20 billion claim, but have kept our argument narrowly focused. This case arises from a frivolous discrimination claim that cannot detract from Comcast’s strong civil rights and diversity record or our outstanding record of supporting and fostering diverse programming from African American-owned channels.”
Fitzmaurice added that there has been no finding of discriminatory conduct by Comcast against Allen by any court.
The civil rights organizations did not address the merits of Allen’s lawsuit. Derrick Johnson, president and chief executive of the NAACP, said the “irreparable harm of the position that Comcast is taking far supersedes” the underlying case.
The Trump administration has filed a brief in support of Comcast, saying that the U.S. Court of Appeals for the 9th Circuit erred in deciding that a plaintiff could win by showing that race was just one factor in a decision not to enter into a contract.
“In so doing, the court arrived at a rule that does not apply to any other federal anti-discrimination law: A defendant is subject to damages liability under Section 1981 solely because the plaintiff can prove that an illegitimate motive played a part in the defendant’s conduct, even if the defendant would have taken the challenged action without regard to any protected characteristic,” wrote Solicitor General Noel J. Francisco.
The Supreme Court’s ruling on whether a plaintiff alleging racial discrimination must show that a contract would have been made if not for race “may have repercussions for other federal antidiscrimination laws that the United States enforces or that apply to the federal government,” Francisco wrote.