On June 24, 2013, the United States Supreme Court heightened the burden of proof for employees bringing retaliation claims under Title VII by holding that employees have to prove that the employer's desire to retaliate was the "but-for" cause for the employer's adverse employment action.
Executive Summary: On June 24, 2013, the United States Supreme Court heightened the burden of proof for employees bringing retaliation claims under Title VII by holding that employees have to prove that the employer's desire to retaliate was the "but-for" cause for the employer's adverse employment action. In Univ. of Tex. Southwestern Med. Ctr. v. Nassar, the Court found that the "motivating factor" standard commonly applied to Title VII status-based discrimination claims is not the proper standard for Title VII retaliation claims. Instead, the Court held that plaintiffs must prove Title VII retaliation claims through the higher but-for causation standard commonly found under traditional tort principles. The Court highlighted the dramatic increase in retaliation claims over the years and predicted that the new but-for standard will help foreclose frivolous retaliation claims. The Court was sharply divided on the issue as demonstrated by its 5-4 vote. Justice Kennedy delivered the opinion of the Court, with Chief Justice Roberts and Justices Scalia, Thomas, and Alito joining in the opinion. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined.
Title VII of the Civil Rights Act of 1964 (Title VII) makes it unlawful for an employer to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of the individual's race, color, religion, sex, or national origin. Title VII also includes an anti-retaliation provision, which makes it unlawful for employers to take an adverse employment action against an employee for having opposed, complained of, or sought remedies for unlawful workplace discrimination.
In its 1989 decision in Price Waterhouse v. Hopkins, 490 U.S. 228, the Supreme Court held that a plaintiff could prevail on a status-based Title VII discrimination claim if he or she could show that plaintiff's race, color, religion, sex, or national origin was a "motivating" or "substantial" factor in the employer's adverse action. In 1991, Congress passed the Civil Rights Act of 1991, which, in part, codified the Price Waterhouse motivating factor causation standard. Courts throughout the nation subsequently applied the same standard to Title VII retaliation claims, with some recent circuit divides.
In 2009, the Supreme Court visited the issue of causation in Gross v. FBL Financial Services, Inc., 557 U. S. 167. Gross, however, dealt with the Age Discrimination in Employment Act of 1967 ("ADEA"), not Title VII. In Gross, the Court found that the "because of . . . age" language found in the ADEA created a "but-for" standard for age discrimination claims. In other words, the Court held that an ADEA plaintiff was required to prove that age was the "but-for" cause of the employer's adverse action and declined to adopt the Price Waterhouse motivating factor standard. The Gross decision paved the way for the current Nassar ruling.
The Nassar Facts
Nassar, a physician of Middle Eastern descent, sued the University of Texas Southwestern Medical Center claiming constructive discharge based on alleged harassment by his supervisor, Dr. Levine. Nassar also claimed that Levine's supervisor, Dr. Fitz, retaliated against him after he sent a letter to Fitz and others stating he was resigning because of Levine's harassment. Prior to submitting the letter, Nassar had received a job offer from a University affiliate hospital. Fitz, angry that Nassar publicly humiliated Levine and wanting public exoneration for her, objected to the job offer, arguing that the affiliation agreement between the University and hospital required Nassar to be a University faculty member. The hospital subsequently withdrew its job offer to Nassar.
The jury found for Nassar on both claims. On appeal, the Court of Appeals for the Fifth Circuit found that Nassar did not submit sufficient evidence to establish his constructive discharge count and, therefore, vacated that portion of the judgment. However, the Fifth Circuit affirmed the jury's retaliation finding and held that Nassar could prove retaliation through the motivating factor standard. The University appealed to the Supreme Court.
The Supreme Court's Opinion
The Court closely examined the textual language of Title VII in distinguishing the burden plaintiffs must meet to establish a status-based discrimination claim versus a retaliation claim. The Court primarily compared the language found under the anti-retaliation provision of Title VII to the language found under the ADEA and found no "meaningful textual difference" between the relevant text in the two statutes. Therefore, the Court found that like Gross, "Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action." Under this standard, an employer is not liable for retaliation if it would have taken the same action for other, non-discriminatory reasons. The Court rejected Nassar's primary argument that retaliation essentially is another form of unlawful employment practice under Title VII no different from race or national origin discrimination and, therefore, the same motivating factor causation standard should apply. The Court also highlighted the ever-increasing frequency of retaliation claims and the importance of the but-for causation standard to the "fair and responsible allocation of resources in the judicial and litigation systems." Additionally, the Court discredited the relevant EEOC Compliance Manual, which had adopted the motivating factor standard for Title VII retaliation claims.
Employers' Bottom Line:
The Nassar decision is a significant win for employers:
This new standard likely will make it easier for employers to dispose of frivolous retaliation claims through summary judgment.
The decision should create more certainty for employers evaluating whether they are likely to prevail when filing dispositive motions.
The implications of Nassar could be far reaching. Employers can expect wider application of the Nassar decision outside of the Title VII arena.
Employers should continue to carefully document their employment actions as such evidence will be essential in defeating plaintiffs' attempts to prove retaliation.
If you have any questions regarding this decision or other labor or employment related issues, please contact the author of this Alert, Luis Santos, email@example.com, or the FordHarrison attorney with whom you usually work.