Media Mogul and comedian Byron Allen’s Entertainment Studios Networks sued Comcast Corporation for refusing to carry any of the networks his company owns. Tomorrow, the U.S. Supreme Court will hear an appeal by the Comcast Corporation. The Ninth Circuit Court of Appeals ruled in Allen’s favor, but Comcast (No. 6 on Fair360, formerly DiversityInc’s 2019 Top Companies for Diversity) appealed.
Allen claims Comcast’s refusal to air his networks was racially motivated, which violates Section 1981 of the Civil Rights Act of 1866. The law says “all persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”
Comcast, on the other hand, says it did not discriminate against Allen or his companies based on race, but rather on what it believed viewers wanted. However, Allen alleges Comcast took on other channels owned by white people who had fewer viewers.
This case is much larger than Comcast and Allen. If Comcast wins, civil rights advocates are arguing, it will become more difficult for those who believe they are discriminated against across the board to sue using section 1981. A decision in Comcast’s favor would mean race would have to be the sole reason for a company’s refusal to enter into a contract.
The Civil Rights Act of 1866 was passed during the Reconstruction era. Section 1981 — which Comcast is seeking to gut — allows plaintiffs to sue if they believe race played any role in a company’s decision to not enter into a contract with them.
The goal of Section 1981 was to give people of color the same rights to work, bank, shop, rent or buy a home and become entrepreneurs free from discrimination. Passed after slaves were freed, its applications meant to put Black Americans on the same level as whites, allowing them the same opportunities to work and build wealth.
Comcast denies it is seeking to roll back discrimination protections.
The question before the court will be whether race needs to be the solefactor in a refusal to enter into a contract for the incident to be considered discrimination, or whether it can be just one of the factors.
In October, the Lawyers’ Committee and the NAACP Legal Defense and Educational Fund filed separate briefs supporting Allen. They argue a “but-for” application of the law — meaning the defendant would have entered into a contract with the plaintiff “but for” their race — would restrict those wanting to bring up discrimination cases because they would have the burden of proving race was the only factor playing into their treatment. The briefs argue a “but-for” interpretation of the law does not appear in its text. Neither brief took a position on the merit of Allen’s claims.
The Trump administration filed a brief in support of Comcast, saying the Ninth Circuit Court of Appeals was incorrect in deciding a plaintiff could win by proving racism was just one of the factors leading to a refusal enter into a contract.
Others say Allen’s claim of discrimination does not prove his race played any role in Comcast’s decision not to work with his companies. Comcastalso says it works with a number of minority-owned networks, including AFRO, CLEOTV and The Weather Channel, which Allen owns. Those against Allen — who is a billionaire — believe that his claims are frivolous and undermine other, less wealthy people’s discrimination claims.
Allen is seeking to sue Comcast for $20 billion.
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