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June 2013

U.S. Supreme Court Holds But-For Causation Required to Prove Title VII Retaliation Claims

On June 24, the U.S. Supreme Court held in University of Texas Southwestern Medical Center v. Nassar that Title VII retaliation claims must be proved according to the traditional principles of but-for causation, not the lessened motivating-factor test that governs Title VII discrimination claims.

The Civil Rights Act of 1991 added a new subsection to §2000-e(2) of Title VII to provide that allegations of discrimination are established when the plaintiff shows that a protected characteristic was a “motivating factor” for any employment practice.  The amendment did not change §2000-e(3) governing retaliation claims, which prohibits employers from discriminating against any employee because he has opposed an unlawful employment practice or because he engaged in a protected activity.

Dr. Naiel Nassar, a hospital staff physician and faculty member of Middle Eastern descent, alleged that the University of Texas Southwestern Medical Center retaliated against him for complaining of harassment based on his religion and ethnic heritage.  At trial, the jury was instructed that to prove retaliation, Dr. Nassar must only show that retaliation was a motivating factor of the adverse employment action.  The U.S. Court of Appeals for the Fifth Circuit affirmed the jury’s verdict as to retaliation in favor of Nassar, finding that the motivating-factor test applied to retaliation as well as discrimination claims. 

The Supreme Court reversed, concluding that it is “textbook tort law” that a plaintiff ordinarily must show that the harm “would not have occurred in the absence of — that is, but for — the defendant's conduct.”  The Court found that the motivating-factor test codified in §2000-e(2) for discrimination claims does not apply to retaliation claims, as the plain language of the amendment did not include acts of retaliation.  Further, following the rationale from its decision as to causation under the Age Discrimination in Employment Act in Gross v. FBL Financial Services, Inc., the Court concluded that use of the term “because” in §2000-e(3) required proof of but-for causation for retaliation claims. 

The Nassar decision is a favorable result for employers.  However, in light of the Court’s decision, it is even more important that employers be vigilant to ensure that legitimate, nondiscriminatory and nonretaliatory reasons for adverse employment actions are well-documented.  Employers should also ensure that written employee policies are clear and comprehensive, such as conduct and attendance policies, and carefully document enforcement.  Similarly, decisions that result in adverse employment actions, such as a reduction in force, should also be well-documented.  Such documentation of legitimate business reasons for the adverse action, coupled with the requirement of but-for causation, will hopefully increase the likelihood that a retaliation claim can be defeated. 

To read the opinion, please click here.

 

Employment Law

Kristina M. Brar
Laura E. De Santos


Employment Law