Supreme Court Holds Claim Of Unlawful Retaliation Held to Higher Standard of Causation than Discrimination In Title VII Cases

On June 24, the U.S. Supreme Court (the “Court”) held that retaliation claims under Title VII of the Civil Rights Act must be proven under the traditional principles of “but-for” causation, requiring proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer. In University of Texas Southwestern Medical Center v. Nassar, 2013 WL 2155234 (U.S. Jun. 24, 2013), the Court rejected the Government and Respondent’s argument that a plaintiff could prevail on a claim of unlawful retaliation if he or she could show that the plaintiff’s protected activity was a “motivating” or “substantial” factor in the employer’s alleged wrongful action, a lessened causation standard. The employer-friendly decision makes it harder for plaintiffs to present a prima facie case of unlawful retaliation under Title VII.

The plaintiff in Nassar was a medical doctor employed by the University of Texas (the “University”) as a faculty member and staff physician at the University hospital. The plaintiff alleged that one of his superiors at the hospital was biased against him on account of his ethnic heritage and religion. After resigning his teaching post, the plaintiff sent a letter to the alleged harasser’s supervisor and others, alleging that he left his faculty job due to the superior’s religious, racial, and cultural bias against him. The supervisor protested when Nassar was given another job as a staff physician, asserting that the offer was inconsistent with University policy mandating that staff physicians also be members of the University faculty. The hospital withdrew its offer, and Nassar brought suit, alleging constructive discharge and unlawful retaliation. A jury found for Nasser on both claims, and the District Court affirmed. On appeal, the Fifth Circuit Court of Appeals vacated the jury award for constructive discharge, but affirmed its finding of retaliation on a theory that retaliation claims require only a showing that retaliation was a motivating factor for the adverse employment action, rather than the but-for cause. The University appealed to the Court.

In a 5-4 decision, the Court held that the fact that illegal bias played some part in the adverse employment action is insufficient to make a prima facie case of unlawful retaliation. The Court based its decision on the text, structure and history of Title VII, noting that the explicit changes to the causation standard for status discrimination under Title VII in 1991 were not added to 42 USC § 2000e-3(a), the provisions governing unlawful retaliation. Rather, § 2000e-3(a) specifically provides that “it shall be an unlawful employment practice for an employer to discriminate against any of his employees because he has opposed any practice made an unlawful employment practice…or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” If Congress wanted to extend the lesser standard of causation to cases of employment retaliation, the Court reasoned, it would have changed the language of § 2000e-3(a) as well.

Chaired by Partner Brett J. Schneider, WSH’s Labor and Employment Law Group regularly defends employers against claims brought under Title VII of the Civil Rights Act of 1964, as well as claims brought under the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family Medical Leave Act, the Equal Pay Act, the Florida Civil Rights Act, the Florida Whistleblower’s Act, and similar Federal, State and local laws. The Group defends lawsuits in Federal and State courts across Florida, including class actions and multi-plaintiff cases. The Group also regularly defends employers against discrimination charges brought before the U.S. Equal Employment Opportunity Commission, the Florida Commission on Human Relations and similar local agencies. Our attorneys also handle arbitrations and civil service board and other administrative hearings for our public sector clients. The Group works with our Litigation Division to put each client in the best leveraged position at every phase of employment and labor litigation to make the best decision whether to settle or to try the case.

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Author(s): Brett J. Schneider