The Supreme Court held this week that a plaintiff bringing a retaliation claim under Title VII must establish that the adverse employment action would not have occurred "but-for" an improper motive on the employer's part, rejecting the lesser "motivating factor" standard.  University of Texas Southwestern Medical Center v. Nassar, (USSupCt,  June 24, 2013.  This heightened standard is likely to carry over into other federal laws, such as the ADA.

The Court held that Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the "motivating factor" standard outlined in section 2000e-2(m) of the statute.  The "motivating factor" standard is the standard required to establish impermissible consideration of race, color, religion, sex, or national origin in employment practices, the Court noted. However, this standard is not in the section regarding retaliation, 2000e-3(a), which states that "it shall be an unlawful employment practice for any employer to discriminate against any of his employees…because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." (emphasis added).Given the statute’s use of the word “because,” the Court found that the analysis must be a “but-for” analysis.

Similarly, the ADA's retaliation provision states that "no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." (emphasis added). Since the Supreme Court has established the but-for standard as the default standard absent explicit reference to the lower, "motivating factor" standard, the but-for standard is likely to apply to retaliation claims under the ADA as well.

This decision is likely to mean that fewer ADA retaliation cases will go to trial since it will be more difficult for a plaintiff to survive an employer’s summary judgment motion.