Retaliation claims brought under Title VII of the 1964 Civil Rights Act must be proved according to traditional principles of but-for causation, not the lessened causation test applicable to bias claims, the U.S. Supreme Court ruled June 24, 2013. While a discrimination plaintiff can prevail by showing that bias was a “motivating factor” in an employment decision, an employee claiming retaliation must meet the higher burden of proving that the employer would not have taken the challenged action if the employee had not engaged in a protected activity.
“This is a watershed development in how the Supreme Court is viewing retaliation claims,” Gregory Keating, co-chair of Littler Mendelson’s Whistleblowing & Retaliation Practice, told SHRM Online.
“The court has had about half a dozen occasions since 2006 to address the breadth of retaliation claims and liability. On each and every occasion, the court has adopted the most liberal standard, further fueling the rapid rise in retaliation claims across the country,” Keating said.
“In this case, to a lot of people’s surprise, the court said, ‘We are going to draw a line in the sand and expect more to establish retaliation.’ ”
Jury Given ‘Mixed-Motive’ Instruction
Dr. Naiel Nassar was a member of the medical faculty at the University of Texas Southwestern (UTSW) 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 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 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 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 UTSW’s blocking of Nassar’s employment at the hospital.
Bias Standard Does Not Apply to Retaliation
In a 5-4 decision, the court vacated and remanded the appellate court’s ruling. Writing for the majority, Justice Anthony Kennedy, joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, noted that the Title VII standard for proving status-based discrimination -- that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives for the decision – was the result of a previous Supreme Court decision and a resulting amendment to the statute.
However, Kennedy wrote, Title VII’s antiretaliation provision appears in a different section from its status-based discrimination ban, and there is no indication that Congress intended the 1991 amendment to apply to retaliation claims.
“In defining the proper causation standard for Title VII retaliation claims, it is presumed that Congress incorporated” the standard used for personal injury claims, which requires proof that the defendant’s conduct did in fact cause the plaintiff’s injury, Kennedy wrote.
And, as a matter of policy, lessening the causation standard could “contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment.”
In a sharply worded dissent, Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, wrote that the conclusion reached by the court’s majority “lacks sensitivity to the realities of life at work. In this endeavor, the Court is guided neither by precedent, nor by the aims of legislators who formulated and amended Title VII.”
Restores 'Sanity' to Trying Claims
“This decision is very good news for employers,” said Anthony Oncidi, head of Proskauer’s Los Angeles-based Labor & Employment Law Group.” Oncidi noted that retaliation claims are now the most common type of claim filed against businesses. “Last year, fully 38 percent of all complaints filed with the EEOC included some claim of retaliation, and that number is up from 22 percent just 15 years ago,” he said.
“What the Nassar decision will do is restore some sanity to the process of trying these cases to a jury. An employee will have to prove that illegal retaliation by the employer actually caused the harm that is alleged,” Oncidi said. “Employers clearly should prevail in cases in which the employee cannot prove that but for the employer’s desire to retaliate he or she would not have been harmed.”
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.