Last week, the U.S. Supreme Court raised the bar for employees bringing retaliation claims against their employers under Title VII.
On June 24, 2013 the Supreme Court decided University of Texas Southwestern Medical Center v. Nassar, holding that a retaliation claim under Title VII requires the plaintiff to prove “but-for causation” as opposed to the more liberal “motivating-factor” standard governing Title VII discrimination claims. Although it is currently unclear how or whether this decision will affect retaliation claims that are brought under California law such as claims under the Fair Employment and Housing Act, the decision has significant implications for businesses working outside of California and for retaliation claims brought under Title VII.
Employee, Dr. Naiel Nassar, alleged that the University of Texas Southwestern Medical center retaliated against him for complaining of harassment. Dr. Nassar was a medical doctor of Middle Eastern descent who practiced Islam and worked as a faculty member at the University’s teaching hospital. He alleged that throughout his employment a colleague and supervisor, Dr. Beth Levine, was biased against him on account of his religion and ethnic heritage. On several different occasions, Dr. Nassar complained to his other supervisor about the alleged harassment.
Eventually Dr. Nassar resigned his faculty position and sought a job at the University as a staff physician where he would not work under Dr. Levine. In July 2006, Dr. Nassar sent a letter to several of his colleagues stating that the reason for his departure was harassment by Dr. Levine stemming from “religious, racial and cultural bias against Arabs and Muslims.” Thereafter, the University withdrew its offer to Dr. Nassar for a staff physician position on the grounds that the offer was inconsistent with the affiliation agreement’s requirement that all staff physicians also be members of the University’s faculty.
Dr. Nassar then filed a Title VII suit alleging discrimination and retaliation. The jury found for Dr. Nassar and awarded him backpay as well as compensatory damages. The Court of Appeals for the Fifth Circuit affirmed the retaliation findings on the theory that retaliation claims require only a showing that retaliation was a motivating factor for the adverse employment action, rather than its but-for cause.
Supreme Court’s Holding
The Supreme Court reversed. In a 5-4 decision, the justices held that retaliation claims under Title VII of the Civil Rights Act of 1964 must be proven under traditional “but-for” causation principles. The “but-for” standard requires “the plaintiff to show that the harm would not have occurred in the absence of—that is, but for—the defendant’s conduct.” Thus, the plaintiff must prove that the employer would not have taken the adverse action if the employee had not complained about the alleged harassment or discrimination.
Dr. Nassar argued that the more liberal “motivating factor” test applicable to claims of harassment and discrimination also applied to claims for retaliation. In rejecting this argument, the Court looked to Congress’ implementation of the motivating-factor test. In 1991, Congress amended Title VII to provide that allegations of discrimination based on race, religion, sex, or national origin are established when the plaintiff shows that one of those protected characteristics was a motivating factor for an adverse employment action, even though other factors also may have motivated the adverse action. The Court held that because Congress did not explicitly apply this same motivating-factor standard to all Title VII claims, or insert it as part of the section applying to claims for retaliation, the Court must give effect to Congress’ choice to limit its application just to discrimination claims. Indeed, Congress left the separate section governing retaliation claims unchanged. It states: “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 by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”
Ultimately, the Court remanded Dr. Nassar’s retaliation lawsuit so that a jury could determine whether the alleged retaliation was the “but-for” reason behind the University’s decision not to hire Dr. Nassar for the staff physician position.
What this Means for Employers
Going forward, a plaintiff will be required to prove “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” The Nassar decision is a victory for employers in that it now clarifies that a higher standard of proof is required in mixed-motive cases alleging retaliation under Title VII. However, employers should still guard against retaliation claims especially in California where the current standard only requires a “causal link” between the protected activity and the employer’s adverse employment action. Yanowitz v. L’Oreal USA (2005) 36 Cal.4th 1028, 1044. Establishing a causal link usually requires a showing of circumstantial evidence that (1) an employer was aware that an employee engaged in a protected activity, and (2) an adverse action following within a relatively short period in time thereafter. Earlier this year, the California Supreme Court held in Harris v. Santa Monica (2013) 56 Cal.4th 203, that an employer could avoid some liability, such as damages, backpay, or an order of reinstatement, in a discrimination case by showing it would have made the same decision absent the discriminatory reason. However, even when an employer makes such a showing, the employee may still be entitled to declaratory or injunctive relief to stop the discriminatory practices and reasonably attorney’s fees and costs.
Please note that the information contained in this newsletter is not intended to provide specific legal advice. You should consult with an attorney and not rely on any information contained herein regarding your specific situation.