United States: Supreme Court Limits Mixed-Motive Standard

On June 24, 2013, in a 5-4 decision, the U.S. Supreme Court clarified that an employee alleging unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964 must prove that a retaliatory motive was the "but-for" cause of an adverse employment action. In other words, the employee must show that the employer would not have taken the adverse employment action but for an improper motive. The decision, which will make it more difficult for employees to prevail on retaliation claims, is a significant victory for employers. University of Texas Southwestern Medical Center v. Nassar.

Legal Background

Title VII prohibits discrimination in employment "because of an individual's race, color, religion, sex, or national origin." It also prohibits retaliation "because" an individual opposed a practice made unlawful under Title VII or participated in an investigation into alleged unlawful conduct.

In 1989, in Price Waterhouse v. Hopkins, a plurality of the Supreme Court concluded that, if an employee shows that an impermissible consideration, e.g., national origin, played a role in an employer's adverse employment action, the burden of persuasion shifts to the employer to prove that it would have made the same decision in the absence of the impermissible consideration. If the employer meets that burden, it is relieved of liability.

Subsequently, in 1991, Congress partially codified and partially abrogated Price Waterhouse. Consistent with the Supreme Court's decision, Congress amended Title VII to state that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."

But it also amended Title VII to state that, even if an employer demonstrates that it would have taken the same action in the absence of an impermissible motivating factor, the plaintiff still can recover certain equitable relief, including attorneys' fees and costs, but cannot recover money damages or be reinstated.

After the 1991 amendments, lower courts struggled to apply the Price Waterhouse mixed-motive standard to non-Title VII discrimination claims. The Supreme Court resolved that issue in 2009, simply ruling that the mixed-motive standard of causation does not apply to age discrimination claims under the Age Discrimination in Employment Act. Gross v. FBL Financial Services.

Lower courts also struggled with whether the mixed-motive standard, as codified by the 1991 amendments, applies to all claims under Title VII, including retaliation claims, or just discrimination claims. That issue came to a head in Nassar.

Factual Background

Dr. Naiel Nassar, who is of Middle Eastern descent, was an Assistant Professor of Internal Medicine and Infectious Diseases at the University of Texas Southwestern Medical Center from November 2001 until September 2006. As a faculty member, he worked full time as the Associate Medical Director of the Amelia Court HIV-AIDS Clinic at Parkland Hospital, with which the medical center was affiliated.

In 2004, the medical center hired Dr. Beth Levine as the Chief of the Infectious Diseases Division of the school. Dr. Levine supervised the Clinic's Medical Director, who supervised Dr. Nassar.

According to Nassar, Levine treated him differently than his colleagues from the start. He felt that she unfairly scrutinized his productivity and billing practices and attempted to delay his promotion, among other things. He also objected to certain comments Levine made about individuals of Middle Eastern descent.

In early 2006, Nassar approached the medical center and the hospital with a plan to become an employee of the hospital, at least in part because of a desire to no longer work for Levine. Dr. Gregory Fitz, the Chair of Internal Medicine at the medical center, opposed the plan, citing an affiliation agreement between the center and the hospital requiring all physicians working at the hospital be faculty members of the center. Unknown to the center, Nassar continued to discuss his plan with the hospital. Ultimately, the hospital told Nassar that if he resigned his faculty position with the medical center, the hospital would hire him.

In July 2006, Nassar submitted his resignation to the medical center. In it, he wrote that he was resigning because of the "harassment and discrimination" by Levine. Upon receipt of Nassar's resignation letter, Dr. Fitz and Dr. Samuel Ross, the hospital's Chief Medical Officer, met to discuss Nassar's complaints. Shortly thereafter, the hospital revoked its offer to Nassar.

In 2008, Nassar filed suit against the medical center, claiming that the center had constructively discharged and retaliated against him. With respect to his retaliation claim, he argued that Dr. Fitz had blocked the hospital from hiring him because of his complaints about Dr. Levine. The hospital asserted that Fitz's actions were consistent with the affiliation agreement, and that Fitz would have taken the same action regardless of Nassar's complaints.

During trial, the medical center asked the district court to instruct the jury that it could find the center liable for retaliation only if a retaliatory motive was the "but-for" cause of the center's action. The district court rejected the center's request and instructed the jury that Nassar had to prove only that retaliation was a motivating factor for Fitz's actions. Nassar prevailed on his retaliation claim, and the medical center appealed.

On appeal, the U.S. Court of Appeals for the 5th Circuit upheld the jury's verdict on Nassar's retaliation claim and in so doing, concluded that the district court had properly instructed the jury. The medical center then requested the U.S. Supreme Court to consider whether the district court had properly instructed the jury.

The Issue Before The Court

The issue before the Supreme Court was whether Title VII requires a plaintiff alleging retaliation under Title VII to prove that a retaliatory motive was the "but-for" cause of an adverse employment action, or simply that the impermissible motive was "a motivating factor." In other words, is an employee who alleges retaliation required to prove that the employer would not have taken an adverse employment action but for a retaliatory motive, or merely that a retaliatory motive was one of multiple reasons, including legitimate business reasons, for the employer's actions?

The Court's Ruling

Relying on the text and structure of Title VII, as well as its earlier decision in Gross, the Supreme Court held that an employee alleging retaliation under Title VII must prove that an impermissible motive was the "but-for" cause of the employer's actions. Stated otherwise, an employee must prove that "the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer."

The Court rejected Nassar's argument that the "motivating factor" standard of proof applies to all claims under Title VII, and concluded that it applies only to "status-based discrimination" claims, i.e., claims based on race, color, religion, sex, and national origin.

Significance For Employers

The Court's ruling is a victory for employers. The decision will make it more difficult for employees to prevail on Title VII retaliation claims. An employee alleging retaliation now must prove that an impermissible, retaliatory motive was the reason, not simply a reason, for the employer's actions. The burden of proof never shifts to the employer. The Court acknowledged that the "but-for" standard will make it easier for employer to dismiss "dubious" claims at the summary judgment stage.

The Court's ruling also seems to sound the death knell for Price Waterhouse. The Court stated that "there is no reason to think the different balance articulated by Price Waterhouse somehow survived" the 1991 amendments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.