U.S. Supreme Court Requires Litigants To Prove "But-For Causation" In Workplace Retaliation Lawsuits
In University of Texas Southwestern Medical Center v. Nassar, --- U.S. --- (June 24, 2013), the U.S. Supreme Court in a 5-4 decision handed employers a victory by raising the legal standard that an employee must satisfy to prove unlawful retaliation. In Nassar, a physician attempted to show that his employer retaliated against him for complaining of discrimination. In ruling against the employee, the Court held that a litigant must meet a high standard of causation and prove that the retaliatory conduct was the “but-for” cause of the employer’s action rather than just one motivating factor.
1. Factual Background
The University of Texas Southwestern Medical Center (the “University”) is a medical school that is affiliated with Parkland Memorial Hospital (the “Hospital”). An affiliation agreement between the two required the Hospital to offer vacant staff physician posts to University faculty members.
In 2004, a faculty member of Middle Eastern descent claimed that his supervisor at the University was biased against him on account of his religion and ethnic heritage. He claimed that she manifested her bias by subjecting his billing practices and productivity to undeserved scrutiny and by allegedly making comments such as “Middle Easterners are lazy.” He allegedly complained to another University supervisor as well. Although the faculty member later obtained a promotion with the assistance of his first supervisor, he continued to believe that she was biased against him.
The physician tried to arrange to continue working at the Hospital without also being on the University’s faculty. When it seemed likely that such an arrangement would work out, the employee sent a letter to his supervisor and others in which he stated that the reason for his departure was harassment that stemmed from “religious, racial and cultural bias against Arabs and Muslims.” Subsequently, the Hospital withdrew its offer as being inconsistent with the affiliation agreement.
The physician later filed a lawsuit alleging two violations of Title VII. The first was a status-based discrimination claim, alleging that his first supervisor’s racially and religiously motivated harassment had resulted in his constructive discharge from the University. The second claim was that his other supervisor’s efforts to prevent the Hospital from hiring him were in retaliation for complaining about harassment.
The jury in the trial court found for the physician on both claims, but the Fifth Circuit Court of Appeals did not entirely agree. It found insufficient evidence to support the first claim of constructive-discharge. The Court did, however, affirm the retaliation ruling on the theory that retaliation claims brought under Section 2000e-3(a) require only a showing that retaliation was “a motivating factor” for an adverse employment action rather than its “but-for” cause.
The U.S. Supreme Court granted review and ultimately disagreed with the Circuit Court on the proper standard of causation that governs a retaliation claim.
2. Title VII and Retaliation
The Civil Rights Act prohibits employers from discriminating against employees based on any of seven specified criteria. The first five -- race, color, religion, sex, and national origin -- are personal characteristics and are set forth in Section 2000e-2. The two remaining categories of wrongful employer conduct are not wrongs based on personal traits and are covered by a separate section of Title VII, Section 2000e-3(a). They include an anti-retaliation provision.
The Court first noted that an employee alleging status-based discrimination under Section 2000e-2 need not show that the causal link between injury and wrong is so close that the injury would not have occurred but for the act. This is referred to as “but-for causation,” and it is a very stringent standard. It suffices instead, in cases of status-based discrimination, to show that the motive to discriminate was present, even if the employer had other, lawful motives that also contributed to the employer’s decision. The question here was whether this relaxed causation standard was also applicable to claims of unlawful retaliation.
To answer the question, the Court referred to a previous case involving the Age Discrimination in Employment Act (“ADEA”) (See Gross v. FBL Financial Services, 557 U.S. 167 (2009)). In that case, the Court interpreted a phrase within the ADEA that prohibits discrimination “because of … age.” This phrase prohibits an employer’s adverse employment action when age was the reason that an employer decided to act or, in other words, when age was the “but-for” cause of the decision.
Title VII’s antiretaliation provision contains the same language: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees…because he has opposed…an unlawful employment practice.” The Court indicated that similar to the provision in the ADEA, this enactment requires proof that the desire to retaliate is the “but-for cause” of the challenged retaliatory action.
The employee argued that Section 2000e-2(m), which was a provision added to Title VII in 1991 that relaxed the causation standard, also applied to claims of retaliation. This section makes an adverse employment practice unlawful if it is motivated by race, color, religion, sex or national origin, even if other factors also motivated the practice.
The Court disagreed for various reasons. First, the plain language of Section 2000e-2(m) refers only to race, color, religion, sex and national origin and says nothing of retaliation. Second, the statute’s juxtaposition suggests that the motivating-factor test does not apply to retaliation allegations. Congress inserted that section within Section 2000e-2, which deals only with status-based discrimination. Additionally, when Congress wrote the Americans with Disabilities Act only one year before Section 2000e-2(m), it included a detailed description of the practices constituting discrimination and included an express antiretaliation provision. Thus, the Court found that where Congress elects to address retaliation as part of a detailed scheme, it clearly will do so.
The Court concluded its analysis by noting various policy-based arguments in support of its decision. For example, it noted that relaxing the causation standard would contribute to the filing of frivolous claims and thereby siphon resources from employers and courts.
3. Dissenting Opinion
Four Justices dissented from the majority opinion. They argued that the ban on discrimination and the ban on retaliation in Title VII have always been and should remain closely intertwined. They contended that these two different standards would create confusion among judges and juries. Additionally, they viewed the majority’s interpretation of Section 2000e-2(m) as misguided since that section was aimed at strengthening Title VII, not weakening it as the dissent believed the majority had effectively done.
Although this decision is a favorable one for employers and may serve to reduce the number of meritless retaliation claims that are filed each year, employers should nevertheless maintain and enforce strict zero-tolerance policies that prohibit all forms of discrimination and retaliatory conduct in the workplace. Further, it remains unclear how this decision will affect retaliation claims that are brought under state laws such as California’s Fair Employment and Housing Act. Employers should train their workforces in order to reduce legal risk in this area. Finally, employers facing claims of retaliation or discrimination should immediately consult with experienced legal counsel.