Does the ban on retaliation in Title VII of the Civil Rights Act require an employee to show “but-for” causation for an adverse employment action or require only proof that an improper motive was one of several reasons for an employer’s retaliatory action? That question was before the U.S. Supreme Court on April 24, 2013 (Univ. of Texas Sw. Med. Ctr. v. Nassar, No. 12-484).
Although this is a “hyper-technical issue,” it will have real-world implications, Larry Lorber, a partner in Proskauer’s Labor and Employment Law department, told SHRM Online. If the high court allows “mixed-motive” retaliation claims to proceed, “you will have even more retaliation claims than you do now,” he said. And, according to the Equal Employment Opportunity Commission, retaliation is the fastest growing of all employment-related claims.
Jury Given ‘Mixed-Motive’ Instruction
Dr. Naiel Nassar was a member of the medical faculty at the University of Texas Southwestern Medical Center, which is affiliated with Parkland Hospital. UTSW faculty make up most of the physician staff at the hospital.
Nassar worked at a Parkland clinic for about three years, beginning in 1995, and returned in 2001, as an assistant professor of internal medicine and infectious diseases and assistant medical director of the clinic.
In June 2004, Dr. Beth Levine joined the UTSW as chief of infectious-disease medicine, overseeing the clinic. According to Nassar, Levine unfairly questioned his productivity and billing practices and, in late 2005, in Nassar’s presence, said, “Middle Easterners are lazy,” referring to another doctor of Middle Eastern descent.
Although Nassar was promoted to the rank of associate professor, he claimed that Levine’s harassment led him to start looking for an opportunity to work at the clinic without being a UTSW employee. The hospital told Nassar it would hire him as a staff physician, but he would have to resign from the UTSW.
Nassar submitted a resignation letter to UTSW officials in July 2006, stating that his primary reason for resigning was Levine’s harassment and discrimination, which he attributed to a religious, racial and cultural bias against Arabs and Muslims.
UTSW’s chair of internal medicine opposed the hospital’s hiring of Nassar, claiming that the medical center had the right to fill doctor positions at the hospital with UTSW faculty. The hospital withdrew its job offer.
Nassar filed a lawsuit in the federal district court for race discrimination and retaliation under Title VII, alleging the medical center forced him out of his position and blocked him from being hired by the hospital in retaliation for his discrimination complaint.
In May 2010 a jury found for Nassar on his constructive-discharge and retaliation claims and awarded him $3.2 million in compensatory damages and $438,000 in back pay. As for the retaliation claim, the jury had been instructed that Nassar needed to prove only that discrimination was one of several motives for the UTSW’s actions.
The trial court reduced the compensatory-damages award to $300,000 under Title VII’s damages cap but awarded Nassar more than $400,000 in attorney fees and costs.
On appeal, the 5th Circuit set aside the doctor’s claim of constructive discharge. However, it affirmed the lower court’s judgment based on the jury’s finding of retaliation in the UTSW’s blocking Nassar’s employment at the hospital.
The appeals court ordered a remand so the trial court could reconsider the awards of damages and attorney fees to the former faculty physician. The UTSW sought Supreme Court review, and the high court agreed, on Jan. 14, 2013, to hear the case.
Amendment Doesn’t Apply to Retaliation Claims, Hospital Argues
When Congress enacted the Civil Rights Act of 1991, it added a new section to Title VII, providing that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”
Congress intended this new “mixed-motive” provision to apply only to substantive claims of discrimination against a protected class, not to retaliation claims, Daryl Joseffer, an attorney at King & Spalding in Washington, D.C., argued on behalf of the hospital. He further contended that Gross v. FBL Financial Services Inc.—which the high court decided in 2009, ruling that Age Discrimination in Employment Act claims are governed by “but-for” causation and are outside the scope of the 1991 mixed-motive amendment—supports a similar result in Title VII retaliation claims.
Gross “does most of the work in this case,” and the “plain language” of Section 2(m)—in which Congress referred to discrimination based on race, color, religion, sex or national origin but did not mention retaliation—“does the rest,” Joseffer said.
Representing Nassar at oral argument, Brian Lauten, of Sawicki & Lauten in Dallas, said it makes no sense for Congress to create different causation standards for Title VII discrimination and retaliation claims, adding that it never did so in the 1991 act.
Congress’ reference to “unlawful employment practice” in the 1991 mixed-motive amendment encompasses retaliation as well as substantive discrimination claims, Lauten argued.
Appearing as an amicus for Nassar, the U.S. Justice Department argued that there has never been a federal employment law for which Congress has adopted different causation standards for discrimination and retaliation claims.
Melissa Arbus Sherry, an assistant to the solicitor general, said Congress’ goal with the 1991 act was to have one causation standard, the “motivating factor” standard, apply to both Title VII discrimination and retaliation claims.
Outcome Difficult to Predict
“It’s hard to know what the court will do,” Lorber said. Over the past few years the justices “have made it clear in several decisions that retaliation is an important concept” in anti-discrimination laws.
“The purpose of retaliation is to make the process fair,” he said. “Even if there was no violation of your rights, as long as the complaint was well founded, you should not suffer a hardship if you complained.”
But Title VII makes retaliation a separate cause of action from a claim of discrimination based on a protected characteristic, he noted, and the Gross case makes clear that “a mixed-motive analysis doesn’t apply unless the statute says it does.” So will the court rule that such a causation standard applies to Title VII retaliation actions? “It’s not an open-and-shut question,” Lorber said.
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan actively questioned Joseffer, expressing doubt that Congress would have “divorced” the causation standards for Title VII discrimination and retaliation claims without any clear indications in the 1991 act or in legislative history that it was doing so.
Chief Justice John Roberts and Justices Samuel Alito and Antonin Scalia, however, suggested that there were sound reasons for distinguishing the two causation standards. Roberts noted that Title VII’s anti-retaliation provision is “more functional” than the law’s anti-discrimination provisions. Retaliation is an “order of hierarchy” removed from the statute’s core principle of no discrimination based on the protected class characteristics, he said.
Alito and Scalia both noted that the retaliation and the substantive discrimination provisions were kept separate in the law. Congress could easily have said that the mixed-motive analysis applies to retaliation claims as well as claims of bias, but it did not do so, they said.
A decision in the case is expected by late June.
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.