By: Felicity S. Hanks, Esq. (fhanks@hillwallack.com / link to bio)
On June 24, 2013, the Supreme Court issued its decision in University of Tex. Southwestern Medical Center v. Nassar through which it confirmed the causation standards to be used in Title VII retaliation cases. The Court held that retaliation claims under Title VII must be proved according to “traditional principals of but-for causation, not the lessened causation test stated in §2000e-2(m). This ruling relieves the confusion for attorneys and litigants and gives employers a reason to let out a sigh of relief.
The facts are not overly relevant to the Court’s causation ruling, and thus are summarized only briefly as follows. The Respondent, Nassar, was a faculty member of the University and a physician at the University-affiliated Parkland Memorial Hospital. He is of Middle Eastern descent. Nassar complained to a Dr. Fritz, the supervisor of a Dr. Levine, that Dr. Levine was biased against Nassar due to his religion and ethnic origin. Dr. Levine was one of Nassar’s supervisors. Nassar thereafter resigned from the faculty asserting racial and religious harassment, and accepted a position offered by the hospital, only. Dr. Fritz was upset at the public humiliation of Dr. Levine and objected to the hospital’s employment offer to Nassar. As a result, the hospital withdrew its offer.
Nassar filed a lawsuit alleging, among other things, that Dr. Fritz’s efforts to prevent the hospital from hiring him constituted retaliation for his complaints of racial harassment. 42 U.S.C. §20000e-3(a) prohibits an employer from taking retaliatory action because the employee has made a Title VII claim or challenged an unlawful practice of the employer. The jury found for Nassar on the retaliation claim and the Fifth Circuit affirmed. The Fifth Circuit, however, held that retaliation claims require only a showing that retaliation was a “motivating factor” for the adverse employment action.
The “motivating factor” or “mixed motive” standard applied by the Fifth Circuit is a burden shifting standard adopted by Congress through the Civil Rights Act of 1991 to apply to status-based discrimination claims, i.e. employer discrimination in hiring, firing, salary, promotion and other actions, due to race, color, religion, sex or national origin of the employee or applicant. Under this standard, the complaining employee need only show that discrimination was one of the employer’s motives in making its employment decision. Thereafter, the burden shifts to the employer to demonstrate that here were lawful, non-discriminatory reasons for the decision and that it would have taken the same action regardless of the alleged discrimination. If the employer can show this, the burden then shifts back to the employee to prove that the employer’s stated reason was merely pretext.
The traditional standard for causation is the “but-for” test, which requires a complaining employee to show that the adverse employment action, and injury caused thereby, would not have occurred but for the discriminatory act or motivation. This test places a heavier burden on plaintiffs’ to prove discrimination than does the “motivating factor” test.
Until now, the debate had been whether a retaliation claim under Title VII receives the same “motivating factor” burden shifting standard as status-based discrimination claims under the act. The “motivating factor” test is widely believed to be beneficial to employees, lessening their burden of proof. On the other hand, the “but-for” standard relieves some of the burden on employers to demonstrate that they did not discriminate. In making its decision, the Supreme Court, among other things, looked to the Age Discrimination in Employment Act of 1967 (ADEA), which provides for “but-for” causation. The ADEA predated the Civil Rights Act of 1991, and Congress at that time did not amend the statute to provide for the lessened standard of proof. Similarly, the Court looked to the Civil Rights Act of 1991 and noted that as Congress amended Title VII through the Act, it had the opportunity to clarify the standard for retaliation claims, and chose not to do so. As such, the Court held that retaliation claims are subject to the traditional causation standard under the “but-for” test, not the lessened standards adopted by Congress. .
The Court’s ruling is a win for employers as it did not further lessen the standards of proof afforded to plaintiffs in employment discrimination cases. Please note that this case does not alleviate the need for employers to comply with discrimination laws and accurately and adequately document the reasons for its employment decisions. It does, however, provide some relief for employer litigants in retaliation cases and possibly prevented an influx of retaliation claims under Title VII.
Employers should always consult with experienced legal counsel before taking any adverse employment action against an employee who has alleged discrimination.