Comcast v. NAAAOM: But-For Causation Under §1981

You've been passed over for promotion—again. The new manager is white; you're not. Your performance reviews are stellar. Your gut says race played a role.

You're exploring §1981 because you've heard it bypasses the EEOC and uncaps damages. But there's a causation hurdle you need to understand before you file.

In 2020, the Supreme Court resolved a split that had divided the circuits for a decade: Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, 589 U.S. 327 (2020), held that plaintiffs suing under 42 U.S.C. §1981 must prove race was a but-for cause of the injury—not merely a motivating factor.

This article explains what Comcast changed, why it matters, and how the but-for standard shapes every stage of a §1981 case from pleadings through trial.

You'll learn:

• What "but-for causation" means and how it differs from the motivating-factor standard
• The circuit split Comcast resolved and what the Court actually held
• How the but-for standard affects pleadings, discovery, summary judgment, and trial

What §1981 Protects—and Why the Causation Standard Matters

Section 1981 guarantees "all persons" the same right to make and enforce contracts "as is enjoyed by white citizens." In employment, that means the right to enter into, perform, modify, and enjoy the benefits of an employment contract free from race discrimination.

Why does §1981 matter when Title VII already prohibits race discrimination?

Four reasons:

• No damages cap. Title VII caps compensatory and punitive damages at $50,000 to $300,000 depending on employer size. Section 1981 has no cap.
• No EEOC exhaustion. You can file directly in federal court; no 180-day charge, no right-to-sue letter.
• Four-year statute of limitations. Title VII's charge-filing window is 180 or 300 days; §1981 gives you four years.
• Jury trial. You have a right to a jury on all issues, including damages.

But there's a trade-off.

While Title VII allows a "motivating factor" theory for liability (even if other factors also caused the decision), §1981 requires but-for causation—you must prove the defendant would not have taken the adverse action but for your race.

The Circuit Split: Motivating Factor vs. But-For

Before Comcast, the circuits were divided.

Some courts applied the Title VII motivating-factor framework to §1981 by analogy. Under that standard, a plaintiff who shows race was a motivating factor—even if not the only one—establishes liability (though remedies may be limited if the defendant proves it would have taken the same action anyway).

Other circuits read §1981's text strictly. The statute prohibits conduct taken "because of" race. Those courts held that "because of" means but-for causation: race must be a cause without which the injury would not have occurred.

The question came to a head in a commercial context.

Entertainment Studios, a company owned by a prominent African American entrepreneur, alleged that Comcast refused to carry its channels because of the owner's race. Comcast responded that it declined carriage for legitimate business reasons—channel capacity, programming redundancy, and costs.

The Ninth Circuit had applied a burden-shifting framework borrowed from Title VII. Comcast asked the Supreme Court to clarify the causation standard once and for all.

Here's what the Court held:

In Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, 589 U.S. 327 (2020), the Supreme Court unanimously ruled that §1981 requires but-for causation.

Justice Gorsuch, writing for the Court, anchored the holding in the statute's text. Section 1981 provides that all persons shall have the same right to make and enforce contracts "as is enjoyed by white citizens." A plaintiff alleging unequal treatment must show the defendant treated them differently because of race.

The Court applied the default rule of tort causation: "because of" means but-for cause unless Congress says otherwise. Title VII says otherwise (it explicitly permits motivating-factor liability in §2000e-2(m)). Section 1981 does not.

The Court also rejected layering Title VII's burden-shifting framework onto §1981. The McDonnell Douglas framework is an evidentiary tool, not a mandatory template for all discrimination statutes.

What But-For Causation Means in Practice

But-for causation asks a counterfactual question: Would the defendant have taken the same action if the plaintiff had been of a different race?

If the answer is yes—if race made no difference to the outcome—there is no but-for causation, even if race was considered or was one reason among many.

Contrast that with motivating-factor causation under Title VII. There, a plaintiff who proves race was a motivating factor wins on liability, even if the employer would have made the same decision for other reasons. (The employer can limit remedies by proving same-decision, but liability is established.)

Under §1981's but-for standard, the plaintiff must prove race was a determinative cause—a sine qua non.

Now, here's where it gets interesting:

The but-for standard doesn't mean race must be the only cause. Multiple but-for causes can exist. If an employer fires you both because of your race and because of a legitimate performance issue, and either alone would have been sufficient, courts will ask whether race independently satisfied the but-for test.

But if the employer can show it would have fired you anyway for the legitimate reason—absent any consideration of race—you lose on causation.

How Comcast Affects Every Stage of Your Case

The but-for standard isn't just a trial instruction. It shapes pleadings, discovery, summary judgment, and jury instructions.

Pleadings

Your complaint must plausibly allege that race was a but-for cause. Conclusory statements like "Defendant discriminated against me because of my race" won't survive a motion to dismiss post-Comcast.

You need factual allegations that, if true, support the inference that the adverse action would not have occurred but for your race. Comparator evidence (a similarly situated employee of a different race treated better), timing (adverse action closely following a race-related complaint), or direct evidence (a supervisor's racial comments linked to the decision) all help.

Discovery

Discovery must uncover evidence that isolates race as a determinative factor. You'll want:

• Comparator data (how the employer treated white employees in similar circumstances)
• Decision-maker testimony and documents showing the actual reasons for the decision
• Evidence undermining the employer's stated reasons (pretext)
• Statistical or pattern evidence showing racial disparities in similar decisions

The more you can show the employer's stated reasons are false or insufficient, the stronger the inference that race filled the causal gap.

Summary Judgment

This is where but-for causation bites hardest.

If the employer produces evidence of a legitimate, non-discriminatory reason for the decision—and you can't create a genuine dispute that race was independently sufficient to cause the injury—the court will grant summary judgment.

You need evidence from which a reasonable jury could conclude that but for race, the decision would have been different. Temporal proximity alone usually isn't enough. Suspicious timing plus pretext evidence plus comparator disparities can be.

Here's the thing:

Post-Comcast, courts are more willing to grant summary judgment when plaintiffs rely on motivating-factor logic. Showing race "played a role" or "was considered" doesn't meet the but-for standard.

The Relationship Between §1981 and Title VII After Comcast

You can bring both a Title VII claim and a §1981 claim in the same lawsuit. They're not mutually exclusive.

But Comcast means they now require different proof on causation.

Title VII offers two pathways to liability:

• Disparate treatment under §2000e-2(a): requires proof that race was a motivating factor (even if not the only one).
• Same-decision defense under §2000e-5(g)(2)(B): limits remedies if the employer proves it would have taken the same action absent discrimination, but liability is still established.

Section 1981 has no motivating-factor alternative. It's but-for or nothing.

This creates strategic considerations:

If you have weak causation evidence—your case rests on race being one factor among several—Title VII may be your better vehicle, despite the damages cap. If you have strong evidence that race was determinative and you want uncapped damages, §1981 is worth the higher burden.

Many plaintiffs hedge by pleading both.

For a detailed comparison of when each statute makes sense, see §1981 vs. Title VII: When You Can Skip the EEOC.

Patterson and the 1991 Civil Rights Act: What §1981 Covers

One last wrinkle worth understanding: Comcast addressed causation, but the scope of what §1981 covers was clarified earlier.

In Patterson v. McLean Credit Union, 491 U.S. 164 (1989), the Supreme Court originally held that §1981 protected only the right to make contracts, not conduct occurring after the contract was formed. Under that narrow reading, on-the-job harassment and discriminatory terms of employment fell outside §1981's reach.

Congress responded.

The Civil Rights Act of 1991 amended §1981 to define "make and enforce contracts" to include "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship."

Post-1991, §1981 covers the full lifecycle of the employment relationship: hiring, promotion, compensation, discipline, discharge, and harassment that affects the terms and conditions of employment.

But Comcast reminds us that coverage and causation are distinct. Even if the conduct falls within §1981's scope, you still must prove race was a but-for cause of the injury.

Why Comcast Matters for High-Stakes Race-Discrimination Cases

The practical upshot of Comcast is this: §1981 remains the uncapped-damages forum for race-discrimination claims, but plaintiffs must clear a higher causation bar than Title VII's motivating-factor alternative.

For plaintiffs with strong causation evidence—direct statements linking race to the decision, stark comparator disparities, or clear pretext—§1981 offers jury trials, uncapped damages, and no EEOC exhaustion.

For plaintiffs whose evidence shows race as one factor among many, Title VII's motivating-factor path may be more forgiving, even if the damages cap bites.

The choice often comes down to case strength and damages exposure. High-value cases with clear evidence of race as a determinative factor belong in §1981. Mixed-motive cases or those with moderate damages may fare better under Title VII.

Understanding the but-for standard helps you evaluate which statute fits your facts.

For more on how courts evaluate whether an adverse action is actionable at all, see Burlington v. White: The Materially-Adverse Standard, Explained.

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