Last week, the United States Supreme Court issued its opinion in University of Texas v. Nassar, a highly anticipated decision that resolved the burden of proof faced by employees who are attempting to recover for retaliation under Title VII of the Civil Rights Act of 1964. The Court rejected a more lenient “motivating factor” test, holding instead that the plain text of the statute required a plaintiff to show that their participation in protected activity, was the “but-for” cause for a subsequent adverse employment action. This ruling will increase the likelihood that employers in such cases will prevail on summary judgment, or ultimately at trial, and hopefully will assist in reducing the deluge of retaliation cases that are being filed with the EEOC and the federal courts.
The Nassar plaintiff was a medical doctor who had complained to the University of Texas (his employer) that his direct supervisor was biased against him because of his race and religion. When that complaint was not addressed to his satisfaction, the plaintiff resigned, understanding that he could continue to work as a staff physician with no instructional duties. The University then withdrew the offer it had made to the plaintiff to work solely as a staff physician, claiming that the offer was inconsistent with a requirement that all staff physicians also be members of the University faculty.
The plaintiff filed two Title VII claims against the University: (1) race and religious discrimination and (2) retaliation for complaining about alleged discrimination, ultimately winning a jury verdict in excess of $3 million when he prevailed on both claims. The Fifth Circuit Court of Appeals reversed the verdict related to the race and religious discrimination claims, finding that the plaintiff had not presented sufficient evidence to show he had been constructively discharged. The Fifth Circuit affirmed, however, the lower court’s decision that all the plaintiff needed to show to prevail at trial was that retaliation was a “motivating factor” in the decision to rescind the job offer, rather than the “but for” cause for that decision.
The Supreme Court agreed to review the Fifth Circuit’s decision and, in the opinion issued last week, reversed based upon the plain language of the statute. The Court’s decision turned on the construction of Title VII, which includes a separate provision added by the Civil Rights Act of 1991 that lowers the bar for plaintiffs claiming discrimination on the basis of race, sex, national origin, or religion, requiring only a showing that discrimination was a “motivating factor” (rather than the but-for cause) for the adverse employment action. Although the Fifth Circuit had assumed, as had plaintiff’s counsel, that a natural implication of that statutory language was that retaliation claims would be evaluated by the same standard, the Supreme Court disagreed, holding that, in effect, the statute meant what it said. The burden of proof for a plaintiff in a retaliation case was “but-for,” given the lack of any statutory provision to the contrary.
Interestingly, the Court went on to express that its decision was rooted, at least in part, by the recent spike in retaliation claims. The Court noted that, “[L]essening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employers, administrative agencies and courts to combat workplace harassment.” Eliminating frivolous filings, in the Court’s opinion, would free up necessary judicial and administrative resources to combat more persistent forms of discrimination.
While interesting legally, the Nassar opinion has no significant effect upon the ways in which employers are required to interact with their employees. Employers still may not retaliate against employees who either participate in or oppose workplace discrimination. Yet, the Supreme Court’s opinion may nonetheless signify a turning point in employment law, and have an impact in other areas of discrimination, such as ADA cases where some confusion remains regarding whether a “motivating factor” or a “but-for” standard applies. Certainly, summary judgment will become more common in retaliation cases, and the likelihood of success at trial also will be diminished by the higher “but for” standard established by Nasser.