Section 1981 of the Civil Rights Act of 1866 prohibits discrimination on the basis of race in the making of contracts, including employment contracts. Section 1981 is often used by employees suing for race discrimination as an addition or alternative to claims under Title VII. Last month, a unanimous U.S. Supreme Court held that Section 1981 claims can only be asserted in situations where the contract would have been completed except for the race of a contracting party.

In Comcast Corp. v. NAAAOM, the plaintiff sued Comcast, alleging that it failed to carry its network due in part to race-based animus toward its programming. The district court dismissed the case, finding no reasonable factual pleadings that race was the cause of the decision. The Ninth Circuit reversed the dismissal, holding that the initial pleadings only need to assert that race played a plausible role in the decision.

The Supreme Court unanimously disagreed, dismissing the complaint. The court stated that Section 1981 claims must show that the contractual decision would have been different “but for” race. In order to survive dismissal, the complaint must allege facts that meet this standard. For employers, this decision matters because the Supreme Court refused to accept the pleading standard used for employment discrimination claims under Title VII. This means that plaintiffs seeking to use Section 1981 as an additional or alternative theory of recovery must meet a higher degree of pleadings and evidentiary proof.