On the heels of narrowing the definition of “supervisor” for purposes of liability under Title VII of the Civil Rights Act of 1964, a divided U.S. Supreme Court dealt a second major blow to employees this week by making it harder for them to prove retaliation claims under that same statute.
University of Texas Southwestern Medical Center v. Nassar dealt with the issue of defining the proper standard of causation for claims of retaliation under Title VII. Like basic tort claims, “causation” is a required element of successfully proving a case of discrimination or retaliation under Title VII: the employee’s injury must be caused by the employer’s discriminatory animus or a desire to retaliate.
In this case, there were two options at the Court’s disposal: (i) the easier-to-satisfy “motivating factor” test; or (ii) the more-difficult-to-satisfy “but-for” standard. Under the motivating factor test, an employee could prove retaliation by showing that their decision to report or notify the employer of possible discrimination was a motivating factor in the employer’s decision to terminate them or take some other adverse employment action. On the other hand, under the but-for causation standard, the employee would have to prove that they would have retained their job or avoided some other adverse employment action in the absence of the employer’s retaliatory intent.
The plaintiff in Nassar – a physician of Middle Eastern descent at the University of Texas Southwestern Medical Center – had relied on the motivating factor test in prevailing against the hospital at the trial court level, and argued for its application before the Supreme Court. The U.S. Government also urged the Court to adopt the motivating factor test as the proper causation standard. Unfortunately for this plaintiff, and employees bringing retaliation claims in the future, a narrow majority of the Court disagreed and found that the stricter but-for test applied.
In finding that but-for was the proper causation standard, the Court relied upon both the text of Title VII and the structure of how the statute is written. The Court emphasized that Congress was deliberate in placing the “motivating factor” standard in the section of the statute that deals with discrimination – separate from the section that addresses retaliation. Had Congress intended to apply the motivating factor standard to retaliation claims, it could have and would have written the statute that way, as it has in other discrimination statutes. The Court also elected to disregard the Equal Employment Opportunity Commission’s interpretation and guidance on the proper standard.
The result of Nassar is that employees must prove claims of Title VII discrimination and retaliation under two different causation standards, the new standard for retaliation being much more difficult to satisfy. Heightening the causation standard for retaliation claims may also curb the increasing influx of retaliation lawsuits filed in recent years, which the majority recognized as a problem that was impacting the “fair and responsible allocation of resources in the judicial and litigation systems.” For employers, the decision is a major victory. From a litigation perspective, it will significantly limit an employee’s ability to successfully prove that they were retaliated against. From a practical standpoint, if an employee complains about workplace harassment or discrimination, and is later terminated for legitimate reasons unrelated to his or her complaint, employers can find some comfort in the fact that this termination is now more likely to hold up in court against a retaliation suit. Clearly, employers should still remain cautious when making employment decisions about employees that have arguably blown the whistle about their working conditions, but this decision gives employer’s more flexibility. Moreover, employers must still be diligent in documenting and communicating legitimate personnel issues to employees, so those employees will understand why certain adverse action is taken against them.