In University of Texas Southwestern Medical Center v. Nassar, here, the U.S. Supreme Court held (5-4) that Title VII retaliation claims must be proved under a “but-for” causation standard (meaning the alleged retaliation would not have occurred “but for” the employer’s improper motive), and not the lessened causation standard of “motivating factor” that is applicable to discrimination claims.
Plaintiff Dr. Naiel Nassar worked at the University of Texas Southwestern Medical Center. He claimed that his ultimate supervisor, Dr. Beth Levine, was biased against him on account of his religion and ethnic heritage. Plaintiff complained to the University’s Chair of Internal Medicine (and Dr. Levine’s supervisor) Dr. Gregory Fitz, about this alleged treatment, and ultimately resigned his teaching post at the University. Plaintiff sent a letter of resignation to Dr. Fitz and others stating he was leaving the University because of harassment by Dr. Levine that “stems from…religious, racial and cultural bias against Arabs and Muslims.” Dr. Fitz believed Dr. Levine was publicly humiliated and deserved to be publicly exonerated. In the meantime, Dr. Nassar landed a job as a staff physician with Parkland Memorial Hospital, an affiliate of the University. Once Dr. Fitz learned that Plaintiff received this offer, he complained to Parkland that the offer was inconsistent with an affiliation agreement between Parkland and the University that required all staff physicians also be members of the University faculty (which Plaintiff was not). Parkland then withdrew its offer. Plaintiff sued the University alleging that Dr. Levine’s discriminatory treatment resulted in his constructive discharge, and that Dr. Fitz’s actions were in retaliation for Plaintiff’s complaints of harassment against Dr. Levine.
Plaintiff won at trial. On appeal, the Fifth Circuit vacated the constructive discharge claim but affirmed the retaliation claim on the theory that such claims require only that retaliation be a motivating favor for the adverse employment action. The case then went to the Supreme Court to determine whether employees had to prove retaliation under a “motivating factor” analysis, or under a tougher “but for” causation analysis.
Relying largely on Congress’s decision not to specifically include mixed motive (or motivating factor) language in the retaliation section of the 1991 amendments to Title VII (as it did for claims of discrimination based on membership in protected classes), the Supreme Court held that the “but for” causation standard applied – meaning, an employee must present proof that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”
The decision is a significant victory for employers: (1) the higher causation standard should assist employers in motions for summary judgment on Title VII retaliation claims, and (2) the ruling could support an employer’s argument that the “but for” causation standard applies in other employment statutes where the plain language does not specifically state that a mixed motive analysis applies. Nonetheless, employers should keep in mind that as significant as this ruling is, it only applies to Title VII claims – not state and local anti-retaliation claims.