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.
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