United States: U.S. Supreme Court Imposes High Standard On Title VII Retaliation Plaintiffs

On June 24, the United State Supreme Court set a high standard for plaintiffs who claim that they have suffered retaliation at the hands of their employers because they opposed discrimination made unlawful by Title VII. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court expressly rejected the EEOC's view that a Title VII retaliation plaintiff need demonstrate only that retaliation was one of several motivating factors in the employer's decision, instead deciding that such a plaintiff must prove that the employer's retaliatory motive was the "but for" cause of the adverse employment action. The decision will not have an impact on best practices for how employers manage their employees, but it will affect litigation. Retaliation plaintiffs will have to satisfy what the Court described as a "more demanding" standard than the "motivating factor" standard that some courts had been using.

Justice Kennedy delivered the divided opinion of the Court, joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito. The decision resolves a split among the circuits regarding what retaliation plaintiffs in Title VII cases must prove, abrogating the mixed-motives standard specifically applied by the Fifth and Eleventh Circuits to employers that conduct business in Texas, Louisiana, Mississippi, Alabama, Georgia, and Florida.

The respondent in the case, Naiel Nassar, was a physician employed by the University of Texas who accused his supervisor of racial and religious bias. Nassar planned to resign his position at the University and seek employment directly with the medical center (which would result in a change of supervisors). He alleged that after he complained about the purported discrimination, University officials prevented him from being hired by the center, in retaliation for his allegations. The University argued that, even without the alleged retaliation, Nassar would not have been hired by the center because its agreement with the center required that all physicians be members of the University faculty. As a result, the alleged retaliation could not be the so-called "but for" cause of his loss of the position—that is, Nassar could not show that the center would have hired him but for the retaliation. A jury found for Nassar, and the Fifth Circuit affirmed.

The Supreme Court reversed the Fifth Circuit's decision and determined that Title VII retaliation claims must be proved according to traditional principles of "but for" causation, not the "lessened" motivating factor standard contained in 42 U.S.C. §2000e–2(m), which, the Court said, applies to status-based discrimination—i.e., discrimination based on an "individual's race, color, religion, sex, and national origin." The Court relied on the 2009 Supreme Court decision Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S. Ct. 2343 (2009), which held that plaintiffs who sue under the Age Discrimination in Employment Act ("ADEA") must prove that age was the "but for" cause of the challenged employer decision. In Gross, the Court reasoned that Congress expressly approved mixed-motive discrimination claims under Title VII but made no similar amendment to the ADEA—raising the inference that Congress did not wish to allow mixed-motive claims under the ADEA. Likewise, Justice Kennedy wrote, Title VII's anti-retaliation provision appears in a different section from its status-based discrimination ban and does not contain any language providing for a mixed-motive analysis. As a result, Congress did not intend to apply the motivating-factor standard to Title VII retaliation claims. Contrary to Gross, however, which held that "the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motives cases as in any other ... disparate-treatment action," 129 S. Ct. 2351, the Nasser majority specifically noted that "but for" causation is more "demanding" than the motivating factor standard.

In reversing the Fifth Circuit's decision, the Court also rejected long-standing EEOC views on this issue. According to EEOC's Compliance Manual, a plaintiff can prove a retaliation claim if "there is credible direct evidence that retaliation was a motive for the challenged action," regardless of whether there is also evidence "as to a legitimate motive." 2 EEOC Compliance Manual §8–II(E)(1), pp. 614:0007–614:0008 (Mar. 2003). The Court found that the Manual's guidance lacks "persuasive force" because it fails "to address the specific provisions of this statutory scheme" and it provides only a "generic ... discussion of the causation standards for status-based discrimination and retaliation claims."

This decision is a win for employers. In particular, the decision will likely make it easier for employers to prevail on retaliation claims. And, the Court's reasoning is not likely limited to Title VII and may apply to claims under other statutes such as the Americans with Disabilities Act.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions