Supreme Court Decision Rejects Application of a Lower Causation Standard for Employees Alleging Retaliation Under Title VII
On June 24, 2013, the United States Supreme Court (the Court), in a 5-4 decision, determined in University of Texas Southwestern Medical Center v. Nassar , that an employee alleging unlawful retaliation under Title VII of the Civil Rights Act of 1964 (Title VII) must prove that his or her protected activity was a but-for cause of the alleged adverse action by the employer. The Court's decision means that employees alleging retaliation have a higher causation standard than employees alleging status-based discrimination.
In tort law, the standard of causation typically applied is "but for" causation, meaning that "but for" the defendant's illegal act, the plaintiff would have suffered no injury. In Price Waterhouse v. Hopkins (1989), the Court departed from the traditional "but-for" causation standard and held that, in Title VII discrimination claims, a plaintiff need only show that the employee's protected status was a substantial or motivating factor in the employment decision. The employer would then be held liable unless it could show that the employer had a legitimate, non-discriminatory reason for the adverse employment action.
In the Civil Rights Act of 1991, Congress codified in part, and overruled in part, the Court's decision in Price Waterhouse , creating what is now known as the "mixed motive" theory of causation. The 1991 provision provided that liability for Title VII discrimination claims is established when the plaintiff shows that "race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." Moreover, the provision limited the employer's ability to avoid liability through a showing of a legitimate, non-discriminatory reason for an adverse employment action. Instead, if the employer was able to make such a showing, the plaintiff's remedies were limited to injunctive relief and attorneys' fees.
In Nassar , the Court addressed whether the mixed motive theory applied to Title VII retaliation claims. The plaintiff in Nassar claimed that he was denied permanent employment after complaining about discrimination by his supervisor. The employer argued that regardless of retaliatory intent, the employer would not have hired the plaintiff for legitimate, non-discriminatory reasons. The plaintiff claimed that the mixed motive theory applied to his retaliation claims; therefore even if the employer had a legitimate non-discriminatory reason for not hiring him, the employer was still subject to liability because retaliation was a motivating factor in the employer's decision.
The Court rejected the plaintiff's argument, finding that the 1991 provision that created the lower causation standard for mixed motive discrimination claims does not extend to retaliation claims. The Court reached this conclusion for two reasons. First, the 1991 provision expressly extends only to discrimination claims. The Court reasoned that if Congress had wanted the mixed motive theory to extend to retaliation claims, it would have expressly included such claims in the 1991 amendment. Second, Title VII divides discrimination claims and retaliation claims into two separate and distinct provisions. The Court determined that this bifurcation supported the employer's argument that discrimination and retaliation were two distinct claims, because the 1991 provision was passed by Congress as an amendment to the Title VII provision regarding discrimination claims, but not to Title VII's retaliation provision. Therefore, if Congress had intended the mixed motive theory to apply to retaliation claims, the 1991 provision would have been drafted to amend both the discrimination and retaliation provisions of Title VII.
The Court also noted that requiring retaliation claims to meet a higher standard of causation made sense, as a practical matter, since retaliation claims are being filed with "ever-increasing frequency." The Court observed that, under a lesser causation standard, an employee who may be concerned that his or her employment is about to be terminated could make a false claim of discrimination in order to set up a potential retaliation claim if and when he or she was fired.
Four justices dissented from Justice Kennedy's majority opinion, stating that the purpose of the 1991 provision was to "restore and strengthen" antidiscrimination laws, and therefore it would not make sense for Congress to intentionally exclude retaliation claims from a provision that was intended to make Title VII protections stronger. Penning the dissent, Justice Ruth Bader Ginsburg noted that prior to the 1991 provision being enacted, the Court had determined in several cases that retaliation was a form of discrimination. While the majority acknowledged this case law, the Court held that the cases were not controlling because Title VII expressly treats retaliation claims as separate from discrimination claims by dividing them into two different provisions.
Take Away: The decision in Nasser will make it more difficult for employees to prevail on retaliation claims brought under Title VII and other federal civil rights acts. Employers should still exercise caution when taking an adverse action against an employee who has engaged in protected activity. A careful review of the circumstances supporting the adverse action prior to taking the action will reduce the chance of the employee successfully arguing retaliation.
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