Laptop and pen


Chris Sanders March 31, 2020

Our laws against discrimination were written when racial discrimination was obvious and out in the open. When bigots used racial epithets, loud and proud. When the government enforced business segregation. When the law itself was discriminatory. Think separate drinking fountains.

The federal laws of the Sixties brought the worst bigotry to a screeching halt. No more separate drinking fountains. No more “n-words” from the lips of southern governors. The obvious bigotry ended, mostly, though it’s been ugly in some places at some times in the last 3-4 years. Does that mean discrimination ended? Of course not. Prejudice is alive and well (“well” is the wrong word, since prejudice is sick).

Prejudice is still with us, but the law changed American culture, to drive discrimination underground and into the dark corners of business and government. Maybe that’s why it breaks out among white individuals in public spaces, like Charlottesville. In the dark corners, slurs have morphed into code-words. Like “welfare” and “crime” and “lazy”. People who use the code-words don’t like it when we point out that they are code for discrimination. They whine that complaints about their code-words are simply whiny political correctness.

So prejudice isn’t out in the open. How do we see it? By looking at how it’s covered up. How do they cover up prejudice? By blaming the victim. If someone gets left out of the bidding process, it’s justified as an oversight. Or faulty paperwork, or missed deadlines, or reports of poor quality inventory or service. By claiming what the Black business owner is selling isn’t worth buying.

That’s how media mogul Byron Allen just lost at the US Supreme Court. Allen, a Black billionaire, isn’t a typical case. But the code-words used to deny him a contract were typical. Comcast claimed it didn’t like what Allen was selling. That they weren’t interested in broadcasting his stable of stations available for broadcast. No matter how well those stations were apparently doing. Of course, Comcast didn’t come right out and say it didn’t want to do business with a Black man.

The court of appeals didn’t buy what Comcast was selling. It thought there was enough evidence that discrimination was at least part of the reason Comcast wouldn’t do business with Allen. And a partial reason was bad enough to hold Comcast liable. In legal language, the court of appeals said there was evidence that discrimination was “a motivating factor” in Comcast’s decision not to do business with Allen. Comcast appealed to the US Supreme Court.

The Trump Supreme Court ruled against Allen. Not just on his story, but by setting a new legal standard for proving racial discrimination in doing business. In ordinary terms, the Supreme Court said that Allen couldn’t prove that discrimination was the driving force behind Comcast’s rejection of his stations. In legal terms, the Court said that Allen had failed to prove that, “but for” discrimination, Comcast would have done business with him. Since Comcast had explained its business decision to reject Allen with nondiscriminatory business justification, it shouldn’t be held liable.

That’s bad news for racial discrimination claims. And for other kinds of discrimination, like an age-discrimination case that the US Supreme Court will soon rule on. And for gender and disability-discrimination. And more.

What does it take to win racial discrimination cases, now? More evidence than was required before. More than looking through and discounting the cover-up. Evidence of bigotry that won’t stay hidden.