Originally published in the New Hampshire Business
Review
Q: Janice, Vice President of Acme Corporation, just
received notice of a discrimination charge filed against the
company by a former employee, Tom. The charge alleges the company
discriminated against Tom on the basis of his sex when it failed to
promote him to supervisor and a claim it retaliated against him for
complaining when he was terminated ten months later. Janice wants
to know how the new US Supreme Court decision in Nassar affects
these claims.
In a closely divided 5-4 decision, the US Supreme Court held that a
plaintiff must prove the stricter "but–for"
causation standard to succeed in a retaliation claim under Title
VII. In other words, the unlawful retaliation (for example,
termination) would not have occurred in the absence of the alleged
wrongful actions of the employer. In reaching this holding, the
Supreme Court rejected applying the more liberal standard used in
status-based discrimination claims that permits liability of an
employer by merely proving that "race, color, religion, sex,
or national origin" was simply a motivating or substantial
factor for any adverse employment action or practice taken by the
company.
In University of Texas Southwestern Medical Center v. Nassar, U.S.,
No. 12-484 (June 24, 2013),Dr. Naiel Nassar (Nassar), who is of
Middle Eastern decent, was a faculty member at the University and
an associate director at the affiliated Parkland Memorial Hospital.
Nassar believed one of his supervisors, Dr. Beth Levine (Levine),
discriminated against him based on his religion and ethnic heritage
by making comments such as "Middle Easterners are lazy"
and we "hired another one" and scrutinizing his work more
than other doctors. Nassar complained to Dr. Gregory Fitz,
Levine's supervisor. Because Nassar continued to believe Levine
was biased against him, he resigned his teaching position to take a
full time position at the affiliated hospital. When he resigned, he
sent a letter to Fitz and others stating that he was leaving
because of Levine's harassment. Fitz, upset with the public
comments, later objected to the hospital's job offer to Nassar,
which was withdrawn.
Nassar brought a suit for racial and ethnic constructive discharge
and retaliation in violation of Title VII. Following a trial, a
jury found for Nassar on his constructive discharge claim because
of racially motivated harassment by a superior. The jury also found
that retaliation was a motivating factor in the University's
conduct of preventing Nassar from obtaining a position at an
affiliated hospital. On appeal, the Fifth Circuit Court of Appeals
found support for the jury's verdict as to retaliation but
insufficient evidence of constructive discharge. On appeal, the US
Supreme Court settled a split in the federal courts as to the
proper standard for proving a Title VII retaliation claim.
The Supreme Court explained that causation is proof that the
employer's conduct did in fact cause the employee's injury.
It noted that in the usual course, the law requires a plaintiff to
show "that the harm would not have occurred in the absence of
– that is, but for – the defendant's conduct."
In 1991, however, Congress passed the Civil Rights Act of 1991,
which applied a lessened causation standard to status-based
discrimination under Title VII. That new section provided that
"an unlawful employment practice is established when the
complaining party demonstrates that race, color, religion, sex, or
national origin was a motivating factor for any employment practice
even though other factors also motivated the practice." Under
this new analysis, the employer would still be liable to the
employee for discrimination if it proved that it would have taken
the same employment action, and, while it could save itself from
monetary damages (such as lost wages and emotional distress
damages), it would still be liable for paying attorney's fees
and costs and other injunctive relief (such as an order to
reinstate employee to prior position).
The majority found that the traditional but-for standard applied to
retaliation claims. It reasoned that the express language of the
1991 Act did not support a contrary finding. If Congress had
intended the lesser "motivating factor" language to apply
to retaliation and not just status-based discrimination (race,
color, religion, sex, or national origin), it would have written
the statute that way. The Court further noted that in its view,
there is an "ever-increasing frequency" of retaliation
claims being filed and worried that a lesser causation standard may
produce unfounded or frivolous claims.
The dissent emphasized the "symbiotic relationship between
proscriptions on discrimination and proscriptions on
retaliation." It noted that the Equal Employment Opportunity
Commission supported the lesser standard. To allow a separate
analysis for retaliation claims from status-based discrimination
claims made no sense. Retaliation is a form of discrimination and
should be treated similarly in applying the "motivating"
or substantial factor analysis. Applying two different standards in
Title VII cases, the dissent argued, would confuse trial courts and
juries and allow "proven retaliation to go
unpunished."
Over the past five years, the Supreme Court has broadened the
protections to employees for retaliation under Title VII.
Retaliation has surged to the top of the list for filings at the
EEOC. This holding, confirming the heighted standard for proving
retaliation claims, may curb the increase in such claims. This
decision also allows for the possibility of an employer obtaining
summary judgment on a retaliation claim prior to trial.
Here, while the motivating factor standard will apply to Tom's
sex discrimination claim for failure to promote, the heightened
but-for standard will apply to his retaliation claim. For
retaliation, the employee must prove that his termination would not
have occurred in the absence of the alleged wrongful actions of
Acme. Thus, employers should justify and support the legitimate
business reasons for disciplining or terminating an employee who
has engaged in protected activity. This decision also confirms that
employers like Acme should continue to guard against retaliation
and discrimination claims through strong anti-harassment and
anti-retaliation policies, prompt investigations of all complaints,
and employee and supervisor training.
Jennifer L. Parent is a director in the Litigation Department
and Chair of the Employment Law Practice Group of McLane, Graf,
Raulerson & Middleton, P.A. She is a member of the New
Hampshire Bar Association, Massachusetts Bar Association, U.S.
District Court for the District of New Hampshire, and First Circuit
Court of Appeals.
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