throbber

`(Slip Opinion)
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`
`
` OCTOBER TERM, 2019
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`
`Syllabus
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`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
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`
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` being done in connection with this case, at the time the opinion is issued.
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`
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` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
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` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
`COMCAST CORP. v. NATIONAL ASSOCIATION OF
`AFRICAN AMERICAN-OWNED MEDIA ET AL.
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE NINTH CIRCUIT
` No. 18–1171. Argued November 13, 2019—Decided March 23, 2020
`
`Entertainment Studios Network (ESN), an African-American-owned tel-
`
`evision-network operator, sought to have cable television conglomerate
`
` Comcast Corporation carry its channels. Comcast refused, citing lack
`
`
`of programming demand, bandwidth constraints, and a preference for
`
` programming not offered by ESN. ESN and the National Association
`
`of African American-Owned Media (collectively, ESN) sued, alleging
`
`that Comcast’s behavior violated 42 U. S. C. §1981, which guarantees
`
` “[a]ll persons . . . the same right . . . to make and enforce contracts . . .
`
` as is enjoyed by white citizens.” The District Court dismissed the com-
`plaint for failing plausibly to show that, but for racial animus, Comcast
`
`
` would have contracted with ESN. The Ninth Circuit reversed, holding
`that ESN needed only to plead facts plausibly showing that race played
`
`“some role” in the defendant’s decisionmaking process and that, under
`
` this standard, ESN had pleaded a viable claim.
` Held: A §1981 plaintiff bears the burden of showing that the plaintiff’s
`
`race was a but-for cause of its injury, and that burden remains con-
`stant over the life of the lawsuit. Pp. 3–13.
`
`(a) To prevail, a tort plaintiff typically must prove but-for causation.
`
`
`See University of Tex. Southwestern Medical Center v. Nassar, 570
`
`
`U. S. 338, 347. Normally, too, the essential elements of a claim remain
`
`
`constant throughout the lawsuit. See, e.g., Lujan v. Defenders of Wild-
`
`life, 504 U. S. 555, 561. ESN suggests that §1981 creates an exception
`to one or both of these general principles, either because a §1981 plain-
`tiff only bears the burden of showing that race was a “motivating fac-
`tor” in the defendant’s challenged decision or because, even when but-
`
`for causation applies at trial, a plausible “motivating factor” showing
`
`is all that is necessary to overcome a motion to dismiss at the pleading
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`
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`

`

`2
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`COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN
`AMERICAN-OWNED MEDIA
`
`Syllabus
`
`stage. Pp. 3–12.
`
`
`(1) Several clues, taken collectively, make clear that §1981 follows
`the usual rules. The statute’s text suggests but-for causation: An or-
`dinary English speaker would not say that a plaintiff did not enjoy the
`
`“same right” to make contracts “as is enjoyed by white citizens” if race
`was not a but-for cause affecting the plaintiff’s ability to contract. Nor
`
`does the text suggest that the test should be different in the face of a
`
`motion to dismiss. The larger structure and history of the Civil Rights
`Act of 1866 provide further clues. When enacted, §1981 did not provide
`a private enforcement mechanism for violations. That right was judi-
`cially created, see Johnson v. Railway Express Agency, Inc., 421 U. S.
`
`454, 459, but even in that era, the Court usually insisted that the legal
`elements of implied causes of action be at least as demanding as those
`found in analogous statutory causes of action. That rule supplies use-
`
`ful guidance here, where a neighboring section of the 1866 Act uses the
`
`terms “on account of” and “by reason of,” §2, 14 Stat. 27—phrases often
`
`held to indicate but-for causation—and gives no hint that a different
`
`rule might apply at different times in the life of a lawsuit. Another
`provision provides that in cases not provided for by the Act, the com-
`mon law shall govern, §3, ibid., which in 1866, usually treated a show-
`
`
`ing of but-for causation as a prerequisite to a tort suit. This Court’s
`
`precedents confirm what the statute’s language and history indicate.
`
`See, e.g., Johnson, 421 U. S., at 459–460; Buchanan v. Warley, 245
`U. S. 60, 78–79. Pp. 4–8.
`
`
`
`(2) ESN urges applying the “motivating factor” causation test in
`Title VII of the Civil Rights Act of 1964 to §1981 cases. But this Court
`
`has already twice rejected such efforts in other contexts, see, e.g., Gross
`
`v. FBL Financial Services, Inc., 557 U. S. 167, and there is no reason
`to think it would fit any better here. Moreover, when that test was
`
`added to Title VII in the Civil Rights Act of 1991, Congress also
`
`amended §1981 without mentioning “motivating factors.” Even if ESN
`is correct that those amendments clarified that §1981 addresses not
`just contractual outcomes but the whole contracting process, its claim
`
`that a process-oriented right necessarily pairs with a motivating factor
`causal standard is mistaken. The burden-shifting framework of
`McDonnell Douglas Corp. v. Green, 411 U. S. 792, also supplies no sup-
`
`port for the innovations ESN seeks. Pp. 8–12.
`
`
`(b) The court of appeals should determine in the first instance how
`the operative amended complaint in this case fares under the proper
`standard. P. 13.
`743 Fed. Appx. 106, vacated and remanded.
`GORSUCH, J., delivered the opinion of the Court, in which ROBERTS,
`C. J., and THOMAS, BREYER, ALITO, SOTOMAYOR, KAGAN, and KAVANAUGH,
`
`
`
`

`

`
`
` Cite as: 589 U. S. ____ (2020)
`
` Syllabus
`
`JJ., joined, and in which GINSBURG, J., joined except for the footnote.
`
`GINSBURG, J., filed an opinion concurring in part and concurring in the
`
`judgment.
`
`3
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`

`

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` Cite as: 589 U. S. ____ (2020)
`
`Opinion of the Court
`
`1
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`
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` NOTICE: This opinion is subject to formal revision before publication in the
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order that
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` corrections may be made before the preliminary print goes to press.
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`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 18–1171
`_________________
`
` COMCAST CORPORATION, PETITIONER v.
`
` NATIONAL ASSOCIATION OF AFRICAN
`
` AMERICAN-OWNED MEDIA, ET AL.
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`APPEALS FOR THE NINTH CIRCUIT
`[March 23, 2020]
`
` JUSTICE GORSUCH delivered the opinion of the Court.
`
`Few legal principles are better established than the rule
`
`requiring a plaintiff to establish causation. In the law of
`torts, this usually means a plaintiff must first plead and
`
`then prove that its injury would not have occurred “but for”
`
`the defendant’s unlawful conduct. The plaintiffs before us
`
` suggest that 42 U. S. C. §1981 departs from this traditional
`
`arrangement. But looking to this particular statute’s text
`and history, we see no evidence of an exception.
`I
`
`This case began after negotiations between two media
`
`companies failed. African-American entrepreneur Byron
`Allen owns Entertainment Studios Network (ESN), the op-
`erator of seven television networks—Justice Central.TV,
`Comedy.TV, ES.TV, Pets.TV, Recipe.TV, MyDestina-
`tion.TV, and Cars.TV. For years, ESN sought to have Com-
`cast, one of the nation’s largest cable television conglomer-
`ates, carry its channels. But Comcast refused, citing lack
`
`of demand for ESN’s programming, bandwidth constraints,
`and its preference for news and sports programming that
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`
`
`

`

`2
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`
`
` COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN
`AMERICAN-OWNED MEDIA
`Opinion of the Court
`
`ESN didn’t offer.
`
`With bargaining at an impasse, ESN sued. Seeking bil-
`lions in damages, the company alleged that Comcast sys-
`tematically disfavored “100% African American-owned me-
`
`dia companies.”
`ESN didn’t dispute that, during
`negotiations, Comcast had offered legitimate business rea-
`sons for refusing to carry its channels. But, ESN con-
`tended, these reasons were merely pretextual. To help ob-
`
`scure its true discriminatory intentions and win favor with
`
`the Federal Communications Commission, ESN asserted,
`
`Comcast paid civil rights groups to advocate publicly on its
`behalf. As relevant here, ESN alleged that Comcast’s be-
`
`havior violated 42 U. S. C. §1981(a), which guarantees,
`
`among other things, “[a]ll persons . . . the same right . . . to
`make and enforce contracts . . . as is enjoyed by white
`citizens.”
`
`Much motions practice followed. Comcast sought to dis-
`
`miss ESN’s complaint, and eventually the district court
`
`agreed, holding that ESN’s pleading failed to state a claim
`
`as a matter of law. The district court twice allowed ESN a
`chance to remedy its complaint’s deficiencies by identifying
`
`additional facts to support its case. But each time, the court
`concluded, ESN’s efforts fell short of plausibly showing
`that, but for racial animus, Comcast would have contracted
`with ESN. After three rounds of pleadings, motions, and
`dismissals, the district court decided that further amend-
`ments would prove futile and entered a final judgment for
`
`Comcast.
`
`The Ninth Circuit reversed. As that court saw it, the dis-
`trict court used the wrong causation standard when as-
`
`sessing ESN’s pleadings. A §1981 plaintiff doesn’t have to
`
`point to facts plausibly showing that racial animus was a
`“but for” cause of the defendant’s conduct. Instead, the
`Ninth Circuit held, a plaintiff must only plead facts plausi-
`bly showing that race played “some role” in the defendant’s
`decisionmaking process. 743 Fed. Appx. 106, 107 (2018);
`
`
`
`

`

`3
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` Cite as: 589 U. S. ____ (2020)
`
`Opinion of the Court
`
` see also National Assn. of African American-Owned Media
`
`
`v. Charter Communications, Inc., 915 F. 3d 617, 626 (CA9
`
`2019) (describing the test as whether “discriminatory intent
`play[ed] any role”). And under this more forgiving causa-
`tion standard, the court continued, ESN had pleaded a via-
`
`ble claim.
`
`
`Other circuits dispute the Ninth Circuit’s understanding
`
`of §1981. Like the district court in this case, for example,
`
`the Seventh Circuit has held that “to be actionable, racial
`prejudice must be a but-for cause . . . of the refusal to trans-
`
`act.” Bachman v. St. Monica’s Congregation, 902 F. 2d
`
`1259, 1262–1263 (1990). To resolve the disagreement
`
`among the circuits over §1981’s causation requirement, we
`
`agreed to hear this case. 587 U. S. ___ (2019).
`
`II
`
`It is “textbook tort law” that a plaintiff seeking redress
`for a defendant’s legal wrong typically must prove but-for
`causation. University of Tex. Southwestern Medical Center
`
`v. Nassar, 570 U. S. 338, 347 (2013) (citing W. Keeton, D.
`Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law
`of Torts 265 (5th ed. 1984)). Under this standard, a plaintiff
`must demonstrate that, but for the defendant’s unlawful
`conduct, its alleged injury would not have occurred. This
`ancient and simple “but for” common law causation test, we
`have held, supplies the “default” or “background” rule
`against which Congress is normally presumed to have leg-
`islated when creating its own new causes of action. 570
`U. S., at 346–347 (citing Los Angeles Dept. of Water and
`
`Power v. Manhart, 435 U. S. 702, 711 (1978)). That in-
`
`cludes when it comes to federal antidiscrimination laws like
`§1981. See 570 U. S., at 346–347 (Title VII retaliation);
`Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176–
`177 (2009) (Age Discrimination in Employment Act of
`1967).
`
`Normally, too, the essential elements of a claim remain
`
`
`
`
`
`
`
`

`

`
`
`
`
`
`
` COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN
`AMERICAN-OWNED MEDIA
`Opinion of the Court
`constant through the life of a lawsuit. What a plaintiff must
`do to satisfy those elements may increase as a case pro-
`
`gresses from complaint to trial, but the legal elements
`themselves do not change. So, to determine what the plain-
`tiff must plausibly allege at the outset of a lawsuit, we usu-
`ally ask what the plaintiff must prove in the trial at its end.
`
`See, e.g., Lujan v. Defenders of Wildlife, 504 U. S. 555, 561
`(1992); Dura Pharmaceuticals, Inc. v. Broudo, 544 U. S.
`336, 346–347 (2005); Ashcroft v. Iqbal, 556 U. S. 662, 678–
`679 (2009).
`
`ESN doesn’t seriously dispute these general principles.
`Instead, it suggests §1981 creates an exception to one or
`both of them. At times, ESN seems to argue that a §1981
`plaintiff only bears the burden of showing that race was a
`
`“motivating factor” in the defendant’s challenged decision,
`
`not a but-for cause of its injury. At others, ESN appears to
`
`concede that a §1981 plaintiff does have to prove but-for
`
`causation at trial, but contends the rules should be different
`
`at the pleading stage. According to this version of ESN’s
`
`argument, a plaintiff should be able to overcome at least a
`motion to dismiss if it can allege facts plausibly showing
`that race was a “motivating factor” in the defendant’s deci-
`sion. ESN admits this arrangement would allow some
`claims to proceed past the pleading stage that are destined
`to fail later as a matter of law. Still, the company insists,
`that is what the statute demands.
`A
`We don’t doubt that most rules bear their exceptions.
`
`
`But, taken collectively, clues from the statute’s text, its his-
`tory, and our precedent persuade us that §1981 follows the
`general rule. Here, a plaintiff bears the burden of showing
`that race was a but-for cause of its injury. And, while the
`
`materials the plaintiff can rely on to show causation may
`change as a lawsuit progresses from filing to judgment, the
`
`burden itself remains constant.
`
`4
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`

`

`5
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`
` Cite as: 589 U. S. ____ (2020)
`
`Opinion of the Court
`Congress passed the Civil Rights Act of 1866 in the after-
`
` math of the Civil War to vindicate the rights of former
`
`slaves. Section 1 of that statute included the language
`found codified today in §1981(a), promising that “[a]ll per-
`sons . . . shall have the same right . . . to make and enforce
`contracts, to sue, be parties, [and] give evidence . . . as is
`
`enjoyed by white citizens.” 42 U. S. C. §1981; Civil Rights
`Act of 1866, 14 Stat. 27.
`
`While the statute’s text does not expressly discuss causa-
`
`tion, it is suggestive. The guarantee that each person is
`entitled to the “same right . . . as is enjoyed by white citi-
`zens” directs our attention to the counterfactual—what
`
`would have happened if the plaintiff had been white? This
`
`focus fits naturally with the ordinary rule that a plaintiff
`must prove but-for causation. If the defendant would have
`
`responded the same way to the plaintiff even if he had been
`
`white, an ordinary speaker of English would say that the
`plaintiff received the “same” legally protected right as a
`
`white person. Conversely, if the defendant would have re-
`
`sponded differently but for the plaintiff ’s race, it follows
`
`that the plaintiff has not received the same right as a white
`
`person. Nor does anything in the statute signal that this
`
`test should change its stripes (only) in the face of a motion
`
`to dismiss.
`
`
`The larger structure and history of the Civil Rights Act of
`
`1866 provide further clues. Nothing in the Act specifically
`
`authorizes private lawsuits to enforce the right to contract.
`Instead, this Court created a judicially implied private right
`of action, definitively doing so for the first time in 1975. See
`
`Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 459
`
`(1975); see also Jett v. Dallas Independent School Dist., 491
`
`U. S. 701, 720 (1989). That was during a period when the
`
`Court often “assumed it to be a proper judicial function to
`
`provide such remedies as are necessary to make effective a
`statute’s purpose.” Ziglar v. Abbasi, 582 U. S. ___, ___
`
`(2017) (slip op., at 8) (internal quotation marks omitted).
`
`
`
`
`
`

`

`6
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`
`
` COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN
`AMERICAN-OWNED MEDIA
`Opinion of the Court
`With the passage of time, of course, we have come to appre-
`
`ciate that, “[l]ike substantive federal law itself, private
`
`rights of action to enforce federal law must be created by
`
`Congress” and “[r]aising up causes of action where a statute
`has not created them may be a proper function for common-
`
`law courts, but not for federal tribunals.” Alexander v.
`Sandoval, 532 U. S. 275, 286–287 (2001) (internal quota-
`tion marks omitted). Yet, even in the era when this Court
`routinely implied causes of action, it usually insisted on le-
`gal elements at least as demanding as those Congress spec-
`ified for analogous causes of action actually found in the
`
`statutory text. See, e.g., Blue Chip Stamps v. Manor Drug
`
`Stores, 421 U. S. 723, 736 (1975).
`
`That rule supplies useful guidance here. Though Con-
`
`gress did not adopt a private enforcement mechanism for
`
`violations of §1981, it did establish criminal sanctions in a
`neighboring section. That provision permitted the prosecu-
`tion of anyone who “depriv[es]” a person of “any right” pro-
`
`tected by the substantive provisions of the Civil Rights Act
`of 1866 “on account of ” that person’s prior “condition of
`
`
`slavery” or “by reason of ” that person’s “color or race.” §2,
`
`14 Stat. 27. To prove a violation, then, the government had
`
`to show that the defendant’s challenged actions were taken
`“‘on account of ’” or “‘by reason of ’” race—terms we have
`
`
`often held indicate a but-for causation requirement. Gross,
`
`557 U. S., at 176–177. Nor did anything in the statute hint
`
`that a different and more forgiving rule might apply at one
`
`particular stage in the litigation. In light of the causation
`standard Congress specified for the cause of action it ex-
`
`pressly endorsed, it would be more than a little incongruous
`for us to employ the laxer rules ESN proposes for this
`Court’s judicially implied cause of action.
`
`Other provisions of the 1866 statute offer further guid-
`ance. Not only do we generally presume that Congress leg-
`islates against the backdrop of the common law. Nassar,
`570 U. S., at 347. The Civil Rights Act of 1866 made this
`
`
`
`
`
`
`
`

`

`7
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`
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` Cite as: 589 U. S. ____ (2020)
`
`Opinion of the Court
`background presumption explicit, providing that “in all
`cases where [the laws of the United States] are not adapted
`to the object [of carrying the statute into effect] the common
`law . . . shall . . . govern said courts in the trial and disposi-
`tion of such cause.” §3, 14 Stat. 27. And, while there were
`exceptions, the common law in 1866 often treated a showing
`
`of but-for causation as a prerequisite to a tort suit. See, e.g.,
`Hayes v. Michigan Central R. Co., 111 U. S. 228, 241 (1884);
`
`Smith, Legal Cause in Actions of Tort, 25 Harv. L. Rev. 103,
`108–109 (1911); White, The Emergence and Doctrinal De-
`
`velopment of Tort Law, 1870–1930, 11 U. St. Thomas L. J.
`
`463, 464–465 (2014); 1 F. Hilliard, Law of Torts 78–79
`(1866); 1 T. Sedgwick, Measure of Damages 199 (9th ed.
`1912). Nor did this prerequisite normally wait long to make
`
`its appearance; if anything, pleadings standards back then
`were generally even stricter than they are in federal prac-
`tice today. See generally, e.g., Lugar, Common Law Plead-
`ing Modified versus the Federal Rules, 52 W. Va. L. Rev.
`137 (1950).
`
`This Court’s precedents confirm all that the statute’s lan-
`guage and history indicate. When it first inferred a private
`cause of action under §1981, this Court described it as “af-
`
`ford[ing] a federal remedy against discrimination . . . on the
`basis of race,” language (again) strongly suggestive of a but-
`
`for causation standard. Johnson, 421 U. S., at 459–460
`
`(emphasis added). Later, in General Building Contractors
`Assn., Inc. v. Pennsylvania, 458 U. S. 375 (1982), the Court
`explained that §1981 was “designed to eradicate blatant
`
`deprivations of civil rights,” such as where “a private offeror
`
`
`refuse[d] to extend to [an African-American], . . . because he
`is [an African-American], the same opportunity to enter
`
`into contracts as he extends to white offerees.” Id., at 388
`(emphasis deleted; internal quotation marks omitted).
`Once more, the Court spoke of §1981 using language—be-
`cause of—often associated with but-for causation. Nassar,
`570 U. S., at 350. Nor did anything in these decisions even
`
`
`
`
`
`

`

`
`
`
`
`8
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`COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN
`AMERICAN-OWNED MEDIA
`Opinion of the Court
` gesture toward the possibility that this rule of causation
`
`sometimes might be overlooked or modified in the early
`stages of a case.
`
`This Court’s treatment of a neighboring provision, §1982,
`
`supplies a final telling piece of evidence. Because §1982
`
`was also first enacted as part of the Civil Rights Act of 1866
`and uses nearly identical language as §1981, the Court’s
`“precedents have . . . construed §§1981 and 1982 similarly.”
`
`CBOCS West, Inc. v. Humphries, 553 U. S. 442, 447 (2008).
`
`Section 1982 guarantees all citizens “the same right . . . as
`
`is enjoyed by white citizens . . . to inherit, purchase, lease,
`
`sell, hold, and convey real and personal property.” And this
`
`Court has repeatedly held that a claim arises under §1982
`when a citizen is not allowed “to acquire property . . . be-
`cause of color.” Buchanan v. Warley, 245 U. S. 60, 78–79
`
`(1917) (emphasis added); see also Jones v. Alfred H. Mayer
`Co., 392 U. S. 409, 419 (1968); Runyon v. McCrary, 427
`
`U. S. 160, 170–171 (1976). If a §1982 plaintiff must show
`the defendant’s challenged conduct was “because of ” race,
`
`it is unclear how we might demand less from a §1981 plain-
`tiff. Certainly ESN offers no compelling reason to read two
`such similar statutes so differently.
`B
`
`
`
`What does ESN offer in reply? The company asks us to
`
`draw on, and then innovate with, the “motivating factor”
`
`causation test found in Title VII of the Civil Rights Act of
`1964. But a critical examination of Title VII’s history re-
`veals more than a few reasons to be wary of any invitation
`
`to import its motivating factor test into §1981.
`
`
`This Court first adopted Title VII’s motivating factor test
`in Price Waterhouse v. Hopkins, 490 U. S. 228 (1989).
`There, a plurality and two Justices concurring in the judg-
`
`ment held that a Title VII plaintiff doesn’t have to prove
`but-for causation; instead, it’s enough to show that discrim-
`ination was a motivating factor in the defendant’s decision.
`
`
`
`
`
`
`
`

`

`9
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` Cite as: 589 U. S. ____ (2020)
`
`Opinion of the Court
`Id., at 249–250 (plurality opinion); see also id., at 258–259
`(White, J., concurring in judgment); id., at 268–269 (O’Con-
`nor, J., concurring in judgment). Once a plaintiff meets this
`lesser standard, the plurality continued, the defendant may
`defeat liability by establishing that it would have made the
`same decision even if it had not taken the plaintiff ’s race
`
`(or other protected trait) into account. In essence, Price Wa-
`terhouse took the burden of proving but-for causation from
`the plaintiff and handed it to the defendant as an affirma-
`tive defense. Id., at 246.
`
`But this arrangement didn’t last long. Congress soon dis-
`placed Price Waterhouse in favor of its own version of the
`motivating factor test. In the Civil Rights Act of 1991, Con-
`gress provided that a Title VII plaintiff who shows that dis-
`
`crimination was even a motivating factor in the defendant’s
`challenged employment decision is entitled to declaratory
`and injunctive relief. §107, 105 Stat. 1075. A defendant
`
`may still invoke lack of but-for causation as an affirmative
`
`defense, but only to stave off damages and reinstatement,
`not liability in general. 42 U. S. C. §§2000e–2(m), 2000e–
`5(g)(2)(B); see also Desert Palace, Inc. v. Costa, 539 U. S. 90,
`94–95 (2003).
`
`While this is all well and good for understanding Title
`VII, it’s hard to see what any of it might tell us about §1981.
`Title VII was enacted in 1964; this Court recognized its mo-
`tivating factor test in 1989; and Congress replaced that rule
`
`with its own version two years later. Meanwhile, §1981
`dates back to 1866 and has never said a word about moti-
`
`vating factors. So we have two statutes with two distinct
`histories, and not a shred of evidence that Congress meant
`
`them to incorporate the same causation standard. Worse
`
`yet, ESN’s fallback position—that we should borrow the
`motivating factor concept only at the pleadings stage—is
`foreign even to Title VII practice. To accept ESN’s invita-
`
`tion to consult, tinker with, and then engraft a test from a
`
`modern statute onto an old one would thus require more
`
`
`
`
`
`

`

`
`
`10
`
`
`COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN
`AMERICAN-OWNED MEDIA
`Opinion of the Court
`than a little judicial adventurism, and look a good deal more
`like amending a law than interpreting one.
`What’s more, it’s not as if Congress forgot about §1981
`
`
`when it adopted the Civil Rights Act of 1991. At the same
`time that it added the motivating factor test to Title VII,
`Congress also amended §1981. See Civil Rights Act of 1991,
`
`§101, 105 Stat. 1072 (adding new subsections (b) and (c) to
`§1981). But nowhere in its amendments to §1981 did Con-
`gress so much as whisper about motivating factors. And
`where, as here, Congress has simultaneously chosen to
`
`amend one statute in one way and a second statute in an-
`other way, we normally assume the differences in language
`imply differences in meaning. Gross, 557 U. S., at 174–175;
`
`see also Russello v. United States, 464 U. S. 16, 23 (1983).
`
`
`Still, ESN tries to salvage something from the 1991 law.
`
`
`It reminds us that one of the amendments to §1981 defined
`the term “make and enforce contracts” to include “making,
`
`performance, modification, and termination of contracts,
`
`and the enjoyment of all benefits, privileges, terms, and
`conditions of the contractual relationship.” 42 U. S. C.
`
`§1981(b). In all this, ESN asks us to home in on one word,
`“making.” By using this particular word, ESN says, Con-
`
`gress clarified that §1981(a) guarantees not only the right
`to equivalent contractual outcomes (a contract with the
`same final terms), but also the right to an equivalent con-
`tracting process (no extra hurdles on the road to securing
`
`that contract). And, ESN continues, if the statute ad-
`
`dresses the whole contracting process, not just its outcome,
`a motivating factor causation test fits more logically than
`the traditional but-for test.
`Comcast and the government disagree. As they see it, the
`
`Civil Rights Act of 1866 unambiguously protected only out-
`comes—the right to contract, sue, be a party, and give evi-
`dence. When Congress sought to define some of these terms
`
`
`in 1991, it merely repeated one word from the original 1866
`
`Act (make) in a different form (making). No reasonable
`
`
`
`
`
`
`
`

`

`
`
`
`11
`
`
`Cite as: 589 U. S. ____ (2020)
`
`Opinion of the Court
`reader, Comcast and the government contend, would think
`that the addition of the present participle form of a verb
`already in the statute carries such a radically different
`meaning and so extends §1981 liability in the new direc-
`tions ESN suggests. And, we are told, the statute’s original
`and continuing focus on contractual outcomes (not pro-
`cesses) is more consistent with the traditional but-for test
`
`of causation.
`
`This debate, we think, misses the point. Of course, Con-
`
`gress could write an employment discrimination statute to
`protect only outcomes or to provide broader protection.
`But, for our purposes today, none of this matters. The dif-
`ficulty with ESN’s argument lies in its mistaken premise
`that a process-oriented right necessarily pairs with a moti-
`vating factor causal standard. The inverse argument—that
`an outcome-oriented right implies a but-for causation
`standard—is just as flawed. Either causal standard could
`conceivably apply regardless of the legal right §1981 pro-
`tects. We need not and do not take any position on whether
`§1981 as amended protects only outcomes or protects pro-
`cesses too, a question not passed on below or raised in the
`
`petition for certiorari. Our point is simply that a §1981
`plaintiff first must show that he was deprived of the pro-
`tected right and then establish causation—and that these
`two steps are analytically distinct.*
`
`
`Unable to latch onto either Price Waterhouse or the Civil
`Rights Act of 1991, ESN is left to cast about for some other
`
`
`
`
`
`
`
`——————
`*The concurrence proceeds to offer a view on the nature of the right,
`
`while correctly noting that the Court reserves the question for another
`
`day. We reserve the question because “we are a court of review, not of
`
`
`first view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), and do
`
`
`not normally strain to address issues that are less than fully briefed and
`that the district and appellate courts have had no opportunity to con-
`sider. Such restraint is particularly appropriate here, where addressing
`the issue is entirely unnecessary to our resolution of the case.
`
`
`
`
`
`

`

`
`
` COMCAST CORP. v. NATIONAL ASSN. OF AFRICAN
`AMERICAN-OWNED MEDIA
`Opinion of the Court
`hook to support its arguments about §1981’s operation. In
`a final effort, it asks us to consider the burden-shifting
`framework of McDonnell Douglas Corp. v. Green, 411 U. S.
`792, 802, 804 (1973). Like the motivating factor test,
`
`McDonnell Douglas is a product of Title VII practice. Under
`
`its terms, once a plaintiff establishes a prima facie case of
`race discrimination through indirect proof, the defendant
`
`bears the burden of producing a race-neutral explanation
`for its action, after which the plaintiff may challenge that
`explanation as pretextual. Texas Dept. of Community Af-
`fairs v. Burdine, 450 U. S. 248, 257–258 (1981). This bur-
`den shifting, ESN contends, is comparable to the regime it
`proposes for §1981.
`
`It is nothing of the kind. Whether or not McDonnell
`
`Douglas has some useful role to play in §1981 cases, it does
`
`not mention the motivating factor test, let alone endorse its
`use only at the pleadings stage. Nor can this come as a sur-
`prise: This Court didn’t introduce the motivating factor test
`
`into Title VII practice until years after McDonnell Douglas.
`
`For its part, McDonnell Douglas sought only to supply a tool
`
`for assessing claims, typically at summary judgment, when
`the plaintiff relies on indirect proof of discrimination. See
`
`411 U. S., at 802–805; see also Furnco Constr. Corp. v. Wa-
`
`ters, 438 U. S. 567, 577 (1978); Malamud, The Last Minuet:
`
`Disparate Treatment After Hicks, 93 Mich. L. Rev. 2229,
`2259 (1995). Because McDonnell Douglas arose in a context
`where but-for causation was the undisputed test, it did not
`address causation standards. So nothing in the opinion in-
`volves ESN’s preferred standard. Under McDonnell Doug-
`las’s terms, too, only the burden of production ever shifts to
`the defendant, never the burden of persuasion. See Bur-
`dine, 450 U. S., at 254–255; Postal Service Bd. of Governors
`
`
`v. Aikens, 460 U. S. 711, 715–716 (1983). So McDonnell
`Douglas can provide no basis for allowing a complaint to
`survive a motion to dismiss when it fails to allege essential
`elements of a plaintiff’s claim.
`
`
`
`
`12
`
`
`
`
`

`

`
`
` 13
`
`
`
` Cite as: 589 U. S. ____ (2020)
`
`Opinion of the Court
`
` III
`All the traditional tools of statutory interpretation per-
`
`suade us that §1981 follows the usual rules, not any excep-
`tion. To prevail, a plaintiff must initially plead and ulti-
`mately prove that, but for race, it would not have suffered
`the loss of a legally protected right. We do not, however,
`
`pass on whether ESN’s operative amended complaint “con-
`tain[s] sufficient factual matter, accepted as true, to ‘state
`a claim to relief that is plausible on its face’ ” under the but-
`
`for causation standard. Iqbal, 556 U. S., at 678–679. The
`Ninth Circuit has yet to consider that question because it
`
`assessed ESN’s pleadings under a different and mistaken
`test. To allow that court the chance to determine the suffi-
`ciency of ESN’s pleadings under the correct legal rule in the
`first instance, we vacate the judgment of the court of ap-
`peals and remand the case for further proceedings con-
`sistent with this opinion.
`
`
`
`
`It is so ordered.
`
`
`
`
`
`

`

`
`
`
`
`1
`
` Cite as: 589 U. S. ____ (2020)
`
`
` GINSBURG, J., concurring
`

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