United States: Supreme Court Holds Stricter Standard Of Proof In Title VII Retaliation Cases

Originally published in the New Hampshire Business Review

Q: Janice, Vice President of Acme Corporation, just received notice of a discrimination charge filed against the company by a former employee, Tom. The charge alleges the company discriminated against Tom on the basis of his sex when it failed to promote him to supervisor and a claim it retaliated against him for complaining when he was terminated ten months later. Janice wants to know how the new US Supreme Court decision in Nassar affects these claims.

In a closely divided 5-4 decision, the US Supreme Court held that a plaintiff must prove the stricter "but–for" causation standard to succeed in a retaliation claim under Title VII. In other words, the unlawful retaliation (for example, termination) would not have occurred in the absence of the alleged wrongful actions of the employer. In reaching this holding, the Supreme Court rejected applying the more liberal standard used in status-based discrimination claims that permits liability of an employer by merely proving that "race, color, religion, sex, or national origin" was simply a motivating or substantial factor for any adverse employment action or practice taken by the company.

In University of Texas Southwestern Medical Center v. Nassar, U.S., No. 12-484 (June 24, 2013),Dr. Naiel Nassar (Nassar), who is of Middle Eastern decent, was a faculty member at the University and an associate director at the affiliated Parkland Memorial Hospital. Nassar believed one of his supervisors, Dr. Beth Levine (Levine), discriminated against him based on his religion and ethnic heritage by making comments such as "Middle Easterners are lazy" and we "hired another one" and scrutinizing his work more than other doctors. Nassar complained to Dr. Gregory Fitz, Levine's supervisor. Because Nassar continued to believe Levine was biased against him, he resigned his teaching position to take a full time position at the affiliated hospital. When he resigned, he sent a letter to Fitz and others stating that he was leaving because of Levine's harassment. Fitz, upset with the public comments, later objected to the hospital's job offer to Nassar, which was withdrawn.

Nassar brought a suit for racial and ethnic constructive discharge and retaliation in violation of Title VII. Following a trial, a jury found for Nassar on his constructive discharge claim because of racially motivated harassment by a superior. The jury also found that retaliation was a motivating factor in the University's conduct of preventing Nassar from obtaining a position at an affiliated hospital. On appeal, the Fifth Circuit Court of Appeals found support for the jury's verdict as to retaliation but insufficient evidence of constructive discharge. On appeal, the US Supreme Court settled a split in the federal courts as to the proper standard for proving a Title VII retaliation claim.

The Supreme Court explained that causation is proof that the employer's conduct did in fact cause the employee's injury. It noted that in the usual course, the law requires a plaintiff to show "that the harm would not have occurred in the absence of – that is, but for – the defendant's conduct." In 1991, however, Congress passed the Civil Rights Act of 1991, which applied a lessened causation standard to status-based discrimination under Title VII. That new section provided 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." Under this new analysis, the employer would still be liable to the employee for discrimination if it proved that it would have taken the same employment action, and, while it could save itself from monetary damages (such as lost wages and emotional distress damages), it would still be liable for paying attorney's fees and costs and other injunctive relief (such as an order to reinstate employee to prior position).

The majority found that the traditional but-for standard applied to retaliation claims. It reasoned that the express language of the 1991 Act did not support a contrary finding. If Congress had intended the lesser "motivating factor" language to apply to retaliation and not just status-based discrimination (race, color, religion, sex, or national origin), it would have written the statute that way. The Court further noted that in its view, there is an "ever-increasing frequency" of retaliation claims being filed and worried that a lesser causation standard may produce unfounded or frivolous claims.

The dissent emphasized the "symbiotic relationship between proscriptions on discrimination and proscriptions on retaliation." It noted that the Equal Employment Opportunity Commission supported the lesser standard. To allow a separate analysis for retaliation claims from status-based discrimination claims made no sense. Retaliation is a form of discrimination and should be treated similarly in applying the "motivating" or substantial factor analysis. Applying two different standards in Title VII cases, the dissent argued, would confuse trial courts and juries and allow "proven retaliation to go unpunished."

Over the past five years, the Supreme Court has broadened the protections to employees for retaliation under Title VII. Retaliation has surged to the top of the list for filings at the EEOC. This holding, confirming the heighted standard for proving retaliation claims, may curb the increase in such claims. This decision also allows for the possibility of an employer obtaining summary judgment on a retaliation claim prior to trial.

Here, while the motivating factor standard will apply to Tom's sex discrimination claim for failure to promote, the heightened but-for standard will apply to his retaliation claim. For retaliation, the employee must prove that his termination would not have occurred in the absence of the alleged wrongful actions of Acme. Thus, employers should justify and support the legitimate business reasons for disciplining or terminating an employee who has engaged in protected activity. This decision also confirms that employers like Acme should continue to guard against retaliation and discrimination claims through strong anti-harassment and anti-retaliation policies, prompt investigations of all complaints, and employee and supervisor training.

Jennifer L. Parent is a director in the Litigation Department and Chair of the Employment Law Practice Group of McLane, Graf, Raulerson & Middleton, P.A. She is a member of the New Hampshire Bar Association, Massachusetts Bar Association, U.S. District Court for the District of New Hampshire, and First Circuit Court of Appeals.

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.

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