United States: In "Nassar", Supreme Court Confirms Title VII Retaliation Claims Subject To But-For Causation Standard

Todd Steenson is a Partner in our Chicago office

In a big win for employers, the Supreme Court ruled by a 5-4 majority that retaliation claims under Title VII are subject to the higher standard of proof for age discrimination claims, rather than the lower standard applicable to Title VII discrimination claims. University Of Texas Southwestern Medical Center v. Nassar, No. 12–484 (June 24, 2013). The decision may make it more difficult for employees to get retaliation claims before a jury.

Legal Background

Title VII prohibits an employer from discriminating against an employee "because of" such individual's race, color, religion, sex, and national origin. To recover to establish employer liability for such status-based discrimination, a plaintiff need only prove that a prohibited characteristic was a "motivating factor" in an adverse employment decision. The plaintiff does not need to prove that the protected characteristic was the sole or predominant factor or that "but for" the protected characteristic, the decision would have been different.

Title VII also prohibits employers from retaliating against any employee because the employee has "opposed" any practice made unlawful by Title VII or because the employee has "participated in" a proceeding under Title VII. Courts have differed, though, over the proof necessary to support a retaliation claim. Some have held that Title VII's retaliation provision is like the discrimination provision, and requires the plaintiff to prove only that a retaliatory motive was a "motivating factor" in the challenged decision. But other courts have ruled that the plaintiff had to prove that the retaliatory motive was the "but-for" cause of the challenged decision. The Nassar case presented that question.

The Dispute

The University of Texas Southwestern Medical Center is a university medical center that specializes in medical education. It has an affiliation agreement with Parkland Memorial Hospital, which requires the hospital to offer vacant staff physician posts to university faculty members. The plaintiff, Dr. Nassar, is a physician of Middle Eastern descent who was both a university faculty member and a hospital staff physician. He claimed that one of his supervisors at the university, Dr. Levine, was biased against him on account of his religion and ethnic heritage, and he complained to Dr. Levine's supervisor, Dr. Fitz. Dr. Nassar arranged to continue working at the hospital without also being on the university's faculty. He then resigned his teaching post and sent a letter to Dr. Fitz and others, stating that he was leaving the university because of Dr. Levine's harassment. Dr. Fitz, upset at what he considered Dr. Levine's public humiliation and wanting public exoneration for her, objected to the hospital's job offer to Dr. Nassar, which was then withdrawn.

Dr. Nassar sued, alleging two discrete Title VII violations. First, he alleged that Dr. Levine's racially and religiously motivated harassment had resulted in his constructive discharge from the university, in violation of Title VII's anti-discrimination provision. Second, he asserted that Dr. Fitz retaliated against him for his complaints about Dr. Levine by interfering with his job opportunity at the hospital. The jury found for Dr. Nassar on both claims.

The U.S. Court of Appeals for the Fifth Circuit affirmed the jury's verdict on the retaliation claim. It reasoned that Title VII's retaliation prohibition requires only a showing that retaliation was a motivating factor for the adverse employment action, not its but-for cause. And it found that the evidence allowed the jury to conclude that Dr. Fitz's interference with Dr. Nassar's job opportunity at the hospital had been motivated, at least in part, by a desire to retaliate against Dr. Nassar for his complaints about Dr. Levine.

The Supreme Court's Decision

On review, the Supreme Court ruled thatTitle VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened "motivating factor" causation test found in Title VII's anti-discrimination provision.

The Court reasoned that unless an employment discrimination statute states otherwise, it presumes that Congress intended to apply the usual "but-for" standard of causation, requiring the plaintiff to prove that the decision would not have been made without the improper motive. Title VII's discrimination provision is different because Congress added specific language providing 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." The Court found that this language did not apply to the retaliation provision, which is in a separate part of the statute and does not contain this language.

Significance for Employers

The Nassar decision is another victory for employers before the Court this term. Since 2000, the number of claims filed with the U.S. Equal Employment Opportunity Commission ("EEOC") each year alleging unlawful retaliation has roughly doubled — from 19,694 in 2000 to 37,836 in 2012. In fact, in 2012, 38 percent of all EEOC claims filed alleged retaliation. Retaliation is now the most common type of discrimination alleged nationally, topping both race (34 percent) and gender (31 percent).

Also, retaliation claims can be difficult to defend. An employees may be able to assert a viable retaliation claim even if his or her discrimination claims lack merit, and juries don't like retaliation claims.

The ruling in Nassar means that employees will now need to show that a retaliatory motive was the principal or but-for cause of an adverse employment decision to recover. That is a more difficult standard of proof and may result in fewer retaliation claims making it before juries — and fewer favorable jury verdicts.

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