The Supreme Court of the United States recently adopted a strict causation standard that will make it more difficult for employees seeking to prove retaliation in violation of Title VII of the Civil Rights Act of 1964. In University of Tex. Southwestern Med. Ctr. v. Nassar, No. 12-484, 2013 U.S. LEXIS 4704 (June 24, 2013), the Court decided the standard that applies to employees suing for retaliation under Title VII.
In retaliation cases, a plaintiff must establish three elements: (1) protected activity such as complaining of discrimination or participating in a discrimination investigation; (2) adverse employment action like discharge, constructive discharge, demotion or creating a hostile work environment; and (3) causation—i.e., that the adverse employment action was taken because of the protected activity. The parties are frequently in dispute over the causation element. The level of proof needed to establish causation is an issue that courts wrestle with in many contexts, and a number of different standards for proving causation have been adopted for different causes of action.
In the Nassar case, the Court ruled that, to prevail on a retaliation claim brought under Title VII, an employee must show that the employer would not have taken the adverse employment action “but for” a desire to retaliate against the employee for engaging in protected activity. This “but-for” causation test stands in contrast to the less stringent causation test the Court adopted for Title VII status-based discrimination cases in Price Waterhouse v. Hopkins, 409 U.S. 228 (1989), pursuant to which an employee need show only that his or her protected characteristic (e.g., her race, color, religion, sex, or national origin) was a motivating factor in the employer’s adverse action. In 1991, Congress amended Title VII to include the “motivating factor” standard to status-based discrimination provisions.
In Nassar, the plaintiff, a physician of Middle Eastern descent, made an internal complaint in which he alleged that the defendant’s Chief of Infectious Disease Medicine, Dr. Levine, was biased against Nassar because of Nassar’s religious and ethnic heritage. Nassar later resigned from his position with the defendant medical center, publicly citing the harassment of Dr. Levine as the reason for his resignation. Specifically, Nassar sent a letter to Dr. Levine’s supervisor, Dr. Fitz, and other staff members, alleging he was resigning due to harassment by Dr. Levine that stemmed from religious, racial and cultural bias. Although Nassar was prepared to accept another offer of employment with a health care facility affiliated with the medical center, that offer was withdrawn following Nassar’s public allegations regarding Dr. Levine and Dr. Fitz’s opposition to the offer. Dr. Fitz contended he opposed the offer because Nassar’s employment was not consistent with certain administrative requirements; however, at the same time he openly expressed his consternation at Nassar’s accusations against Dr. Levine.
Nassar filed suit under Title VII in the Northern District of Texas alleging: (1) status-based discrimination based on his ethnicity and religious beliefs; and (2) retaliation for complaining about Dr. Levine’s harassment. As to his discrimination claim, Nassar claimed Dr. Levine’s racially and religiously motivated harassment resulted in his constructive discharge. In support of his retaliation claim, Nassar alleged that the affiliated health care facility failed to hire him in retaliation for his complaints about Dr. Levine’s harassment. The jury found for Nassar on both claims after the District Court judge instructed the jury to apply the “motivating factor” causation standard on both claims. On appeal, the Fifth Circuit vacated the discrimination verdict, but affirmed the retaliation verdict, ruling that, like status-based discrimination claims under Title VII, a plaintiff may prove retaliation by showing that retaliation was a motivating factor for an adverse employment action, rather than its “but-for” cause. The Court found that the evidence supported a finding that Dr. Fitz was motivated, at least in part, to retaliate against Nassar for his complaints about Dr. Levine.
The Supreme Court vacated the decision of the Fifth Circuit, finding that, in a Title VII retaliation action where there are both retaliatory and non-retaliatory reasons for the employment decision at issue, an employee may prevail only if he can show that his protected activity was a “but-for” cause of the alleged adverse action. The Supreme Court remanded the matter for further proceedings consistent with its opinion. The Supreme Court’s decision was based, in part, on the text, structure and history of Title VII. The Court also relied on its earlier decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (June 18, 2009), which held that the language in the Age Discrimination in Employment Act of 1967 (ADEA) “because of ... age” meant that a plaintiff must show that the prohibited criterion (age) was the but-for cause of the prohibited conduct (discrimination). The Court noted that, like the ADEA, Title VII’s anti-retaliation provision makes it unlawful for an employer to take an adverse employment action “because of” certain criteria. The Court also found as significant that, like the ADEA, Title VII’s anti-retaliation provision does not include the “motivating factor” standard that is found in Title VII’s provision addressing status-based discrimination.
The Nassar decision is good news for employers, who continue to see the number of retaliation claims rise, with 38 percent of all charges filed with the Equal Employment Opportunity Commission in 2012 alleging some form of retaliation.1 Similar to the Court’s application of Gross, an ADEA claim, to this matter, a Title VII claim, employers should anticipate that other federal and state courts may rely on Nassar and apply this “but-for” standard to other federal and state statutes that contain anti-retaliation provisions. The new, more difficult standard of proof announced by Nassar should make it easier for employers to prove that an employee would have been subject to an adverse employment action whether or not he complained. The ruling should also aid employers in disposing of more frivolous lawsuits at the earlier phases of litigation.
Matthew V. DelDuca, Amy G. McAndrew and Tanneika Minot
*Tanneika Minott was a 2013 summer associate in Pepper Hamilton’s Princeton office.
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