Lawmakers Introduce Legislation Addressing Issue At Center Of Byron Allen’s Supreme Court Case: The Threshold For Proving Racial Bias

By Ted Johnson

A group of House and Senate Democrats are introducing legislation that would make it easier for plaintiffs to prove racial bias cases, keying in on language in civil rights law that was at the center of Byron Allen’s lawsuit against Comcast.

The legislation, called the Economic Inclusion Civil Rights Act of 2021 and introduced on Thursday, would overhaul a provision of a post-Civil War era civil rights law, known as Section 1981, by prohibiting any actions that have discriminatory effects. The bill would make it easier to prove intentional discrimination, as plaintiffs would have to show only that racial bias was a motivating factor, rather than the sole factor, in such claims.

Allen sued Comcast, claiming racial discrimination when the cable giant refused to carry his company’s entertainment channels. The case made it all the way up to the Supreme Court, with a number of political figures aligning with Allen in the case. But the justices ruled unanimously in favor of Comcast, concluding that Allen had to show that were it not for race, or “but for” in legalese, he would have landed the carriage contracts. Comcast denied the claims in the lawsuit.

Allen’s Entertainment Studios eventually reached a settlement with Comcast that led to a carriage agreement for a series of his channels, but legal experts had viewed the Supreme Court case as significant in showing how courts interpret racial discrimination cases under current law.

The sponsors of the legislation include Sen. Cory Booker (D-NJ), Sen. Richard Blumenthal (D-CT) and Sen. Ron Wyden (D-OR) in the Senate, and Rep Jamie Raskin (D-MD) and Rep. Mondaire Jones (D-NY) in the House. In the lead up to the oral arguments in the Supreme Court case in 2019, Booker, Blumenthal , Wyden and then-Sen. Kamala Harris were among those who signed on to an amicus brief supporting Allen.

Jones, who was elected last year, said in a statement,“Thanks in large part to a series of poorly reasoned Supreme Court decisions, racial discrimination remains legal in far too many aspects of our economy and our society. This bill would change that by making it easier for victims of racial discrimination to prevail in court.”

In a statement, Allen thanked the lawmakers “for supporting my call to action with their heartfelt dedication and tireless efforts in expanding and improving upon Section 1981 to achieve racial justice and economic inclusion for all Americans, especially for African Americans, the furthest left behind economically. I believe the Economic Inclusion Civil Rights Act of 2021, when enacted, will benefit not only African Americans who have been shut out of our economy, but all Americans who want greater prosperity and fairness for everyone.”

Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law, who argued Allen’s case before the high court, said, “It is very difficult to prove intentional discrimination, and unfortunately, the United States Supreme Court has greatly weakened the protections of Section 1981, which is essential for remedying the pervasive racial discrimination and inequalities in the American economy. Congress can and must remedy this through the proposed legislation.”

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