"But-for" or "mixed motive" is a causation question not unknown to the U.S. Supreme Court. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a plurality held that the anti-discrimination provision of Title VII only requires a plaintiff to prove that discrimination was a "motivating factor" for an adverse employment action. But 20 years later, in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court held that the ADEA requires more demanding proof that age was the "but-for" cause of an adverse employment action, such that a defendant is not liable if it can prove that it would have taken the same action for other, nondiscriminatory reasons. Circuit courts have since split on whether Gross or Price Waterhouse establishes the general rule for other federal statutes that do not explicitly provide for mixed-motive claims. In recently granting review in University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (U.S.), the Supreme Court has decided to entertain yet another variation of a familiar question: whether the more lenient "mixed-motive" standard applies to Title VII retaliation claims or whether the more stringent "but for" standard applies. The resolution of that question will be significant not only for Title VII retaliation claims, but potentially for whistleblower retaliation claims arising under other similarly worded statutes, such as the False Claims Act (FCA).
For example, if the Supreme Court finds that a "mixed-motive" causation standard is permissible under Title VII's retaliation provision, more claims and potential liability for employers are likely to follow. In fact, a recent empirical study found that under the more lenient "mixed-motive" standard, plaintiffs recover significantly more often than under the more conventional "but-for" causation standard. See David Sherwyn & Michael Heise, The Gross Beast of Burden of Proof: Experimental Evidence Employment Discrimination Case Outcomes, 42 ARIZ. ST. L.J. 901, 944 (2010). Although the Civil Rights Act of 1991 partially abrogated Price Waterhouse, even if a defendant proves as an affirmative defense to a Title VII discrimination claim that it "would have taken the same action in the absence of the impermissible motivating factor," the court may still award equitable relief (including equitable monetary relief such as front pay) and attorneys' fees to the plaintiff. Moreover, as the employer in Nassar explained in its petition seeking Supreme Court review, "equitable relief and attorney's fees can be far more burdensome than a damages award."
The importance of this issue potentially extends far beyond the Title VII retaliation context. Causation is an element of nearly all causes of action, including for claims alleged under various retaliation and whistleblower statutes. For instance, given the linguistic similarity between the retaliation provisions of Title VII and the FCA, a finding that "mixed-motive" cases are viable under Title VII's retaliation provision could potentially make it equally challenging for employers to defend FCA retaliation cases. Compare 42 U.S.C. § 2000e-3(a) ("It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].") (emphasis added), with 31 U.S.C. § 3730(h) ("Any employee . . . shall be entitled to all relief necessary to make that employee . . . whole, if that employee . . . is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee . . . in furtherance of an action under [the FCA] or other efforts to stop 1 or more violations of [the FCA].") (emphasis added).
Thus, the potential consequences of the Supreme Court decision in Nassar are many and potentially expansive. It remains to be seen whether the case will be argued and decided prior to the beginning of the Court's summer recess in late June.
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