{"id":10877,"date":"2026-06-05T02:47:21","date_gmt":"2026-06-05T02:47:21","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/supreme-court-developments-in-discrimination-law\/"},"modified":"2026-06-05T02:47:21","modified_gmt":"2026-06-05T02:47:21","slug":"supreme-court-developments-in-discrimination-law","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/supreme-court-developments-in-discrimination-law\/","title":{"rendered":"Supreme Court Developments in Discrimination Law"},"content":{"rendered":"\n
Within the last week, there have been two significant developments in cases before the Supreme Court that may affect employers.\u00a0 In Comcast Corp.<\/em> v. National<\/em> Association of African American-Owned Media<\/em>, the Supreme Court held that a plaintiff bringing a race discrimination claim under Section 1981 of the Civil Rights Act of 1866, must show that any injury would not have occurred \u201cbut for\u201d the plaintiff\u2019s race.\u00a0 And in Peterson<\/em> v. Linear Controls<\/em>, the federal government urged the Court to grant certiorari to resolve a divide among the federal circuit courts of appeals in favor of a broader interpretation of the scope of adverse employment actions prohibited by Title VII of the Civil Rights Act of 1964.<\/p>\n

In Comcast<\/em>, in a unanimous decision authored by Justice Gorsuch, the Court vacated a Ninth Circuit ruling and found no reason to depart from the \u201cgeneral rule\u201d that a \u201cplaintiff bears the burden of showing that race was a but-for cause of its injury\u201d and that the \u201cburden itself remains constant\u201d throughout the lawsuit.[1]<\/a>\u00a0In so doing, the Court explicitly declined to import Title VII\u2019s \u201cmotivating factor\u201d test[2]<\/a> to Section 1981, emphasizing the text of the statutes and the statutes\u2019 \u201ctwo distinct histories[] and not a shred of evidence that Congress meant them to incorporate the same causation standard.\u201d[3]<\/a>\u00a0<\/p>\n

Notably, the Court left open the question as to whether Section 1981 protects the right to equal contractual outcomes<\/em> or an equal contracting process<\/em>.[4]<\/a>\u00a0In a separate concurrence, Justice Ginsburg urged against limiting Section 1981 to contractual outcomes.[5]<\/a>\u00a0Justice Ginsburg asserted that \u201cthe language of the statute covers the entirety of the contracting process.\u201d Otherwise, she explained, a defendant could discriminate under Section 1981 \u201cso long as it occurs in advance of the final contract-formation decision.\u201d[6]<\/a><\/p>\n

In Peterson<\/em>, as explained in an article<\/a><\/strong> published in Law360 by three members of the Firm\u2019s Litigation Group, pending before the Supreme Court is a petition for certiorari presenting the question of what constitutes an \u201cadverse employment action\u201d under Title VII.\u00a0 Some circuit courts of appeal have construed the statute restrictively, such as covering only \u201chiring, granting leave, discharging, promoting, or compensating.\u201d\u00a0 Others interpret the statute more broadly and hold that Title VII also covers actions such as \u201ca demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, [or] significantly diminished material responsibilities.\u201d\u00a0 The Supreme Court asked for the views of the federal government as to whether it should grant certiorari and, on March 20, the Solicitor General filed a brief, urging the Court to grant certiorari and resolve the circuit split in favor of broader Title VII protections. The Solicitor General argued that the Fifth Circuit\u2019s narrow definition of \u201cadverse employment action\u201d that limits actionable conduct to \u201cultimate employment decisions\u201d is inconsistent with Title VII\u2019s text and purpose to \u201celiminate discriminatory practices and devices.\u201d[7]<\/a>\u00a0The Solicitor General argued in favor of a broader definition that protects against discrimination in working conditions, including the location and nature of job assignments, the rotation of employees between worksites, and the availability of breaks. If the Court grants certiorari, Peterson<\/em> will be heard in the Court\u2019s next term, which begins in October.<\/p>\n

The Court\u2019s opinion in Comcast<\/em> provides an important clarification of the causation standard applied to Section\u00a01981 claims.\u00a0Under the stricter but-for test adopted by the Court, plaintiffs must meet a higher burden to establish race discrimination for claims brought under the provision.\u00a0Comcast <\/em>is the first of several cases that may reshape the scope of discrimination claims.\u00a0 Rulings remain forthcoming in Bostock <\/em>v. Clayton County, Georgia<\/em>; Altitude Express Inc. <\/em>v. Zarda<\/em>; and R.G. & G.R. Harris Funeral Homes Inc.<\/em> v. U.S. Equal Employment Opportunity Commission<\/em>, in which the Court is considering whether Title VII prohibits discrimination based on sexual orientation and gender identity.\u00a0Our blog post on those cases can be found here<\/strong>.\u00a0And, as discussed, if the Court grants certiorari in Peterson<\/em>, it will issue an important ruling clarifying the scope of prohibited conduct under Title VII.
\u00a0 <\/p>\n

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[1]<\/a>\u00a0Comcast Corp. <\/em>v. Nat\u2019l Ass\u2019n of African Am.-Owned Media<\/em>, No. 18-1171, 2020 WL 1325816, at *4 (U.S. Mar. 23, 2020).<\/div>\n
[2]<\/a>\u00a0Under the 1991 amendments to Title VII, a plaintiff who shows that discrimination was a motivating factor in the defendant\u2019s challenged employment decision is entitled to declaratory and injunctive relief.\u00a0 See <\/em>42 U.S.C. \u00a7\u00a7 2000e\u20132(m).<\/div>\n
[3]<\/a>\u00a0Comcast Corp.<\/em>, No. 18-1171, 2020 WL 1325816, at *6.<\/div>\n
[5]<\/a>\u00a0Id<\/em>., at *8. (Ginsburg, J., concurring).<\/div>\n
[7]<\/a>\u00a0Brief of the Solicitor General at 9, Peterson <\/em>v. Linear Controls,<\/em> No. 18-1401 (Mar. 20, 2020).\u00a0<\/div>\n<\/p><\/div>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"

Within the last week, there have been two significant developments in cases before the Supreme Court that may affect employers.\u00a0 In Comcast Corp. v. National Association of African […]<\/p>\n","protected":false},"author":1,"featured_media":10878,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[143,945,349,153,533],"class_list":["post-10877","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-lawyers","tag-court","tag-developments","tag-discrimination","tag-law","tag-supreme"],"_links":{"self":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/10877","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/comments?post=10877"}],"version-history":[{"count":0,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/10877\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media\/10878"}],"wp:attachment":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media?parent=10877"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/categories?post=10877"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/tags?post=10877"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}