In addition to prohibiting employment discrimination based on race, color, sex, national origin, and religion, Title VII of the Civil Rights Act of 1964 prohibits employers from retaliating against employees because they have opposed unlawful discrimination, filed a discrimination charge, or participated in a proceeding under Title VII. Retaliation charges have proliferated in recent years, and retaliation claims are now second only to race claims among the charges filed under Title VII. A new ruling issued by the U.S. Supreme Court on June 24, 2013, however, will make it harder for claimants to prevail on retaliation claims.
The Supreme Court's Decision in University of Texas Southwestern Medical Center v. Nassar
The Supreme Court held in University of Texas Southwestern Medical Center v. Nassar that retaliation claimants must prove that retaliation was the determinative, or "but for," cause of a challenged employment action. In other words, the claimant must prove that the challenged employment action would not have been taken in the absence of the desire to retaliate. This is a significantly higher standard of causation than the one applicable to claims of discrimination based on race, sex, or other factors protected by Title VII (referred to by the Court as "protected status" discrimination). In those cases, the claimant need only show that the protected status was a motivating factor for the challenged employment action – that is, the employer took the protected status into consideration in taking the employment action, but that status was not necessarily the determinative factor.
In finding that a higher standard of causation applied to retaliation claims than to "protected status" claims under Title VII, the Court analyzed the text and legislative history of Title VII. When Congress amended Title VII in 1991 to codify the "motivating factor" standard for "protected status" claims, it made no change to the separate provision of Title VII covering retaliation claims. In the absence of any indication of a legislative intent to apply a reduced standard of causation to retaliation claims, the Supreme Court applied the traditional "but for" standard, just as it had done in an earlier case interpreting similar statutory language in the Age Discrimination in Employment Act.
Practical Implications
Although a plaintiff in a Title VII retaliation case may be able to show that a desire to retaliate for protected conduct played some part in an adverse employment action, proving that the adverse action would not have occurred in the absence of the desire to retaliate is a much higher hurdle for a plaintiff to clear, particularly when the employer has convincing, legitimate reasons for the challenged employment action. The Supreme Court's ruling in the Nassar case will make it more difficult for employees to prevail in Title VII retaliation claims and easier for employers to dispose of such claims at the pretrial stage of litigation, but it does not erase the fact that retaliation claims are becoming an ever-more-prominent feature of the employment-law landscape. Employers would therefore be wise to include information about protected conduct and retaliation in their supervisory training programs. Also, equal employment opportunity policies should contain express assurances against retaliation and should contain a procedure for reporting suspected retaliation.
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