U.S. Supreme Court Holds Section 1981 Racial Discrimination Claims Require But-For Causation

In a unanimous decision issued on March 23, 2020, the United States Supreme Court held that a but-for causation standard applies to claims brought under Section 1981 of the Civil Rights Act of 1866. The Supreme Court also noted that this standard applies throughout the litigation process, including the initial pleading stage.

The Civil Rights Act of 1866, a Reconstruction-era statute, includes Section 1981, which guarantees "[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." In Comcast Corp. v. National Association of African American-Owned Media, the plaintiff pursued a number of theories, but essentially argued that the Court should adopt the motivating factor test employed in cases arising under Title VII of the Civil Rights Act of 1964. Employment law practitioners often will see complaints including counts for both violations of Title VII and Section 1981. It is important to recognize that the causation standards are different for these two statutes. More ›

Ninth Circuit Rules That Gender-Based Pay Disparity Cannot Be Justified With the Use of Past Earnings

Nearly 60 years after the passage of the Equal Pay Act of 1963, we find that the gender pay gap is not only alive and well, but also remains a subject of controversy. This was apparent in the Ninth Circuit's ruling in Aileen Rizo v. Jim Yovino, which we've been following since the Ninth Circuit heard the case. This is the highest-profile court to address the use of salary history—and its intersection with the Equal Pay Act—in the employment setting. More ›

NLRB Announces Final Joint Employer Rule

Following in the footsteps of the U.S. Department of Labor, the National Labor Relations Board (NLRB) announced its Final Rule regarding joint employment. While the NLRB rarely engages in rulemaking, it deemed it necessary in this instance to provide clarity and predictability regarding joint employment. Effective April 27, 2020, the Final Rule rescinds the current test which went into effect in 2015 and reverts back to the prior analysis. This impacts all employers, particularly in the context of collective bargaining, staffing companies, and franchisers. More ›