Volume 12, Issue 7
July 31, 2013
In the last week of June, the Supreme Court issued a decision that will likely reduce the number of retaliation claims filed against employers. In University of Texas Southwestern Medical Center v. Nassar, the Court held that Title VII retaliation claims must now be proved according to a higher "but-for cause" standard - i.e., proof that the alleged retaliatory conduct did in fact cause the employee's injury - and not the lower "motivating factor" standard applied in discrimination claims that requires the employee to show only that his protected status (or protected activity) was a motivating factor for the adverse employment action, even though other factors may have also motivated the employer's action.
Case Background. Dr. Naiel Nassar, a physician of Middle Eastern descent, was a staff physician at the University of Texas Southwestern Medical Center, a Hospital and a University. The Hospital required all staff physicians to also be members of the University's faculty. During the course of his employment as a faculty member of the University, Nassar complained that his director was biased against him on account of his religion (Muslim) and race (Arab). Nassar alleged that his director remarked that "Middle Easterners are lazy" and publicly questioned Nassar's work ethic and productivity, despite assurances by Nassar's direct supervisor that he was a very hard worker. Nassar eventually resigned from his teaching post at the University, citing in a letter to the chair of his department that his reason for resigning was because of his director's continued harassment. Before Nassar resigned from the University, he reached an agreement with the Hospital to remain on staff as a physician. The Hospital agreed and extended him an offer. However, before Nassar could accept the offer, the chair of department at the University contacted the Hospital and insisted that it withdraw the job offer. The University maintained that the offer was invalid because Nassar failed to satisfy its requirement that all staff physicians be members of the University faculty. The Hospital then withdrew the offer. Nassar claimed that the offer was withdrawn because of his complaints about his director at the University, and eventually filed a complaint in federal court alleging discrimination and retaliation under Title VII. The case went to trial, and a jury found in favor of Nassar on both claims, awarding him $400,000 in back pay and more than $3 million in compensatory damages, which was later reduced to $300,000 by the trial court. On appeal, the U.S. Court of Appeals for the Fifth Circuit considered whether the trial court properly instructed the jury on the standard of proof for the retaliation claim when it told the jury that Nassar did not have to prove that retaliation was the employer's only motivation, but that he had to prove that the employer acted at least in part to retaliate. The Fifth Circuit found no error in the trial court's instruction. The Supreme Court granted certiorari to address what is the proper standard of causation for Title VII retaliation claims.
The Court's Ruling. In its decision, the Supreme Court addressed the proper standard of causation for Title VII retaliation claims. The Court held that to prove retaliation under Title VII, employees must now prove that the employer's motive to retaliate was the "but-for cause" of the adverse employment action. In other words, the adverse employment action would not have occurred but for the employer's intent to retaliate against the employee for engaging in protected activity. The Court held that the lesser "motivating-factor" standard is appropriate only for discrimination claims. It noted that there was no indication that Congress intended that the standard used for discrimination claims be applied to retaliation claims since Title VII's anti-retaliation provisions appear in a different section of the statute than the anti-discrimination provisions. The Court also presumed that Congress intended to incorporate the traditional "but-for causation" standard, since that standard is generally used for tort claims.
Impact of Ruling. The Supreme Court's decision suggests that the Court was concerned with the spike in the number of retaliation claims filed with the EEOC in the last 15 years, and saw this as an opportunity to rein in those claims. Indeed, the Court noted that "lessening the causation could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment." While the impact of the Supreme Court's decision will not be immediate, its effects will most likely be seen first at the EEOC, which now must evaluate retaliation charges under a much higher standard than the standard it had been applying for more than 20 years. Employees will have a much heavier burden to prove retaliation under Title VII. They can no longer establish liability if the adverse employment action was prompted by both legitimate and illegitimate factors. Now, the employer's intent to retaliate against the employee for engaging in protected activity must be the "but-for" or sole reason for the adverse employment action. This HR Focus article was prepared by Kraig B. Long of Shawe Rosenthal LLP, a member of the Worklaw® Network, which first appeared in their July 1, 2013 E-Update. Reprinted with permission.
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