On June 24, 2013, the United States Supreme Court decided, in University of Texas Southwestern Medical Center v. Nassar, that employees pursuing Title VII retaliation claims must prove the traditional “but-for” causation, instead of the relaxed “motivating factor” standard applicable to Title VII discrimination claims.
The Supreme Court had previously ruled that “but-for” causation applied to Title VII discrimination claims. Following that decision, in 1991 Congress amended a portion Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(m)) to require employees alleging discrimination to prove that race, color, religion, sex, or national origin “was a motivating factor for any employment practice, even though other factors also motivated the practice.” That congressional amendment lowered the standard applicable to employees’ discrimination claims. However, Congress did not explicitly apply this amendment to the portion of Title VII dealing with retaliation claims.
The issue in Nassar was whether the 1991 amendment (which created the “motivating factor” standard) applies to Title VII retaliation claims. The Supreme Court, in a 5-4 decision, held that retaliation claims are subject to the traditional “but-for” causation, not the relaxed “motivating factor” test Congress implemented in 1991. Justice Kennedy delivered the opinion of the Court, and Chief Justice Roberts and Justices Alito, Scalia, and Thomas joined. Justice Ginsburg filed a dissenting opinion, and Justices Breyer, Sotomayor, and Kagan joined. The full text of the opinion is available here.
The difference between the standards applicable to retaliation and discrimination claims turns on the word “because.” For retaliation claims, an employee must prove that an employer discriminated because of a previous report of employment discrimination. Another way of saying this is “but for the previous report of employment discrimination, the employer would not have retaliated.” Conversely, for discrimination claims, an employee must prove only that race, color, religion, sex, or national origin was a motivating factor, i.e. one of the factors for an employment practice, not the only factor.
For employers, this ruling is significant because employees’ retaliation claims will be more difficult to prove than discrimination claims, because of the higher “but for” standard. Such claims may now be more likely to be dismissed on summary judgment.
Contact the Larkin Hoffman employment law team to discuss how these changes in law may affect your business.
Co-authored by Armeen Mistry, 2013 Summer Associate at Larkin Hoffman.