Court Sets Test for Retaliation Claims

Wednesday, July 10, 2013

In University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (June 24, 2013), the U.S. Supreme Court held that the standard for proving retaliation claims under Title VII of the Civil Rights Act is a stricter standard than showing that retaliation was a “motivating factor” in an adverse employment decision. The court held that Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lesser causation standard of “motivating factor.” The court held that an employee must prove that an adverse employment action would not have occurred “but for” illegal retaliation in violation of Title VII.

Dr. Nassar is a physician of Middle Eastern dissent who alleged harassment and constructive discharge on the bases of his national origin, religion and retaliation when he was forced to resign his position due to harassment by one of his supervisors at the university. A jury found for Dr. Nassar on both the harassment and constructive discharge claims. The Fifth Circuit vacated the constructive discharge claim but found for Dr. Nassar on his retaliation claim. The Fifth Circuit found that the university was motivated, at least in part, by retaliation. The Fifth Circuit found that retaliation claims, like status-based claims under Title VII (such as race, sex, and religious discrimination), require only a showing that retaliation was a motivating factor for the adverse employment action, not its but-for cause.

In 1991 Congress amended the Civil Rights Act to provide that all an employee has to show is that discrimination was a “motivating factor” in an adverse employment decision. If an employee can show this, the employee will win his case. However, the employer can avoid paying damages if it can show that it would have taken the same action anyway absent discrimination.

The question in Nassar was whether this provision of the 1991 amendments applies to claims of retaliation. The Supreme Court held that it does not. Writing for the majority, Justice Kennedy stated that the motivating factor standard only applies to claims of discrimination and not to claims of retaliation. That decision was based on a close parsing of statutory language. In her dissent, Justice Ginsburg argued that the Court had previously considered retaliation a form of “discrimination” and that the majority was ignoring the reasonable interpretation of the statute and the underlying purposes of the “motivating factor” in 1991 amendment.