Title VII Retaliation Claims Require Proof of ‘But-For’ Causation
A divided U.S. Supreme Court has raised the bar for plaintiffs complaining of retaliation claims under Title VII of the Civil Rights Act of 1964. The Court ruled retaliation must be the “but-for” cause of the employer’s adverse actions, rejecting an employee’s argument that the lower “motivating factor” causation test applied. University of Texas Southwestern Medical Ctr. v. Nassar, 133 S. Ct. 2517 (2013).
The Court found the statute’s plain language and structure demonstrated that retaliation claims were not subject to the motivating factor standard. It also declined to defer to the Equal Employment Opportunity Commission’s view that the lower standard should apply, as expressed in the Commission’s guidance manual, finding that the guidance lacked persuasive force. (After this decision, the EEOC acknowledged Nassar, stating in its manual, “In order to establish unlawful retaliation, a claimant must prove that the employer took an adverse action because of his or her opposition to unlawful discrimination or participation in a complaint, investigation, or lawsuit about discrimination.”)
Naiel Nassar, M.D., an internal medicine and infectious disease specialist of Middle Eastern descent, was a faculty member at the University of Texas Southwestern Medical Center and a staff physician at Parkland Memorial Hospital, pursuant to an affiliation agreement between the University and the Hospital requiring all staff physicians to be employed by the University. Dr. Nassar alleged that during his employment, Dr. Beth Levine, the University’s Chief of Infectious Disease Medicine, harassed him based on his religion and ethnic heritage. He complained to Dr. Gregory Fitz, Dr. Levine’s supervisor.
As a result of the alleged harassment, Dr. Nassar sought to work at the Hospital without being on the University’s faculty. After preliminary negotiations with the Hospital suggested this might be possible, Dr. Nassar resigned from the University, stating his resignation was due to Dr. Levine’s harassment. The Hospital eventually offered Dr. Nassar a staff physician position; however, when Dr. Fitz protested the arrangement as inconsistent with the affiliation agreement, the Hospital withdrew its offer. Dr. Nassar sued the University for racial and religious discrimination and retaliation in violation of Title VII.
A jury found for Dr. Nassar on both claims. The University appealed. The U.S. Court of Appeals for the Fifth Circuit affirmed the judgment on the retaliation claim, holding Dr. Nassar had shown that retaliation was a “motivating factor” in Dr. Fitz’s protest, which led to the withdrawal of the employment offer. The U.S. Supreme Court granted certiorari to address the standard of proof for a retaliation claim under Title VII.
Title VII prohibits employers from discriminating against employees based on their personal characteristics, including their race, color, religion, sex, and national origin (42 U.S.C. § 2000e-2), referred to by the Court as “status discrimination.” Title VII also prohibits employers from retaliating against employees based on an employee’s opposition to employment discrimination or complaint of discrimination. See 42 U.S.C. § 2000e-3(a).
In 1991, Congress added § 2000e-2(m) to Title VII, providing that an employee who shows his or her membership in a protected class was a motivating factor in an employer’s adverse decision could establish an unfair employment practice sufficient to warrant injunctive relief and attorney’s fees and costs, even if the employer could show it would have taken the same action regardless of discrimination, thereby denying the employee an award of individual damages or affirmative relief. Significantly, however, the 1991 Act did not amend any of the provisions related to retaliation in § 2000e-3(a) of Title VII.
But-For Causation Required
Dr. Nassar argued that since retaliation is an “unlawful employment practice” under Title VII and the 1991 Act allowed claims for “unlawful employment practices” based on status to be proven by the lower standard, then that standard should apply to retaliation because retaliation is a form of status discrimination. The Supreme Court rejected the circular argument as unsupported by the plain language of the statutes.
The 1991 Act’s provision addressing the burden of proof amended only Title VII’s status discrimination provision and specifically referred to unlawful employment practices based on race, color, religion, sex, and national origin discrimination. The Court noted that this “indicates Congress’ intent to confine that provision’s coverage to only those types of employment practices.” Had Congress intended the motivating factor standard to apply to retaliation claims, it would have included it as an amendment to the retaliation provision or as an amendment to one of Title VII’s sections applicable to all claims. It did not do so, and the Court was bound to “give effect to Congress’ choice.”
Dr. Nassar also argued that the motivating factor standard should apply to retaliation claims because this was the EEOC’s position in its guidance manual, which was entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944). The Court rejected this, finding the manual was unsupported by law and thus not entitled to deference.
This opinion is welcome news for employers confronted with increasing numbers of retaliation claims. The EEOC received 31,208 charges of retaliation under Title VII in Fiscal Year 2012 (as compared to 22,768 in FY 2002). Justice Anthony Kennedy, who wrote for the majority of the Court, indicated that the heightened standard of proof will assist in obtaining the dismissal of “dubious claims at the summary judgment stage.”
OSHA Cannot Skirt Burden to Prove Employer Had Knowledge of Violation
In ComTran Group, Inc. v. U.S. Department of Labor, 2013 U.S. App. LEXIS 15023 (11th Cir. July 24, 2013), a case of first impression for the circuit, the Eleventh Circuit Court of Appeals held the Occupational Safety and Health Administration (“OSHA”) could not impute an employer’s supervisor’s knowledge of his own acts, which violated the Occupational Safety and Health Act (“OSH Act”), to prove the employer had knowledge of the violation in order to find the employer liable for a cited violation under the Act. The Eleventh Circuit determines federal appeals from Florida, Alabama, and Georgia.
ComTran Group is a small utility company in Georgia. The company was hired by Gwinnett County to relocate some underground utilities that ran alongside a county road. ComTran assigned a two-man crew to the project, consisting of a supervisor and helper. An OSHA inspector drove by the site and caught the supervisor digging in a six-foot deep trench without properly supporting the excavation. OSHA issued a citation to the employer for the supervisor’s violative conduct and the employer contested the citation.
OSHA filed suit against the employer with the Occupational Safety and Health Commission. After a hearing, the Administrative Law Judge found the employer liable under the OSH Act for the supervisor’s conduct and upheld the citation. The employer appealed to the Eleventh Circuit.
To prove an employer has violated the OSH Act, the Secretary of Labor, on behalf OSHA, must establish: (1) the regulation cited applied to the situation; (2) the cited regulation was violated; (3) an employee was exposed to the hazard that was created; and (4) the employer “knowingly disregarded” the Act’s requirements. The Secretary can prove the knowledge element in one of two ways: (1) actual or constructive knowledge of the violation (such as where the supervisor sees the subordinate’s violative conduct); or (2) the employer’s failure to implement an adequate safety program.
In the ordinary case, a supervisor’s knowledge will be imputed to the employer where he or she knew or should have known of a subordinate’s violative conduct. However, as in this case, where the supervisor’s knowledge was of his own malfeasance and the Secretary did not present any evidence that the employer had failed to implement an adequate safety program, the Secretary cannot prove the employer’s knowledge based solely upon the supervisor’s own conduct. “Rather,” the Court held, “‘employer knowledge must be established, not vicariously through the violator’s knowledge, but by either the employer’s actual knowledge, or by its constructive knowledge based on the fact that the employer could, under the circumstances of the case, foresee the unsafe conduct of the supervisor [that is, with evidence of lax safety standards].’” Without evidence that the supervisor’s conduct was foreseeable to the employer, the Court stated, such violative conduct is an isolated incident, for which the OSH Act does not impose liability.
In so finding, the Court distinguished between imputing a supervisor’s knowledge of a subordinate’s conduct and knowledge of his own misconduct. Where the employer is charged with knowledge when the supervisor knew of a subordinate’s violative conduct, the employer has placed the supervisor in charge of compliance with the employer’s safety requirements and the supervisor acts as the “eyes and ears” of the employer. However, where the supervisor is engaging in the violative conduct, the employer does not have any “eyes and ears” for compliance. “In that situation,” the Court explained, “the employer has no ‘eyes and ears.’ It is, figuratively speaking, blind and deaf. To impute knowledge in this situation would be fundamentally unfair.”
Accordingly, where a supervisor is the sole malfeasor in an OSHA violation, the Secretary has to establish the employer’s knowledge with more than the supervisor’s misconduct. The Secretary must establish evidence of the employer’s knowledge that is “independent of the misconduct.”
Risk of Discrimination Claims Based on Obesity Increases
Lawsuits based on obesity have been largely unsuccessful. However, on June 18, 2013, the American Medical Association (AMA) classified obesity as a disease. This classification, while not binding on the courts, may nevertheless persuade them to allow obesity claims under the Americans with Disabilities Act and the ADA Amendments Act of 2008 (which expanded the standard for what constitutes a disability).
ADA coverage for obesity would be a new development in the law. Previously, federal courts in Florida have been reluctant to rule that obesity alone was a disability under the ADA. See, e.g., Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1264 (11th Cir. 2007) (quoting Equal Employment Opportunity Commission regulations for the proposition that “except in rare circumstances, obesity is not considered a disabling impairment”); Merker v. Miami-Dade County, 485 F. Supp. 2d 1349, 1353 (S.D. Fla. 2007) (“Courts have uniformly held that obesity is not a qualifying impairment, or disability, unless it is shown to be the result of a physiological disorder.”). Florida state courts, however, have shown a greater willingness to accept obesity as a disability under the Florida Civil Rights Act for some time. See Greene v. Seminole Elec. Coop., 701 So. 2d 646, 647 (Fla. 5th DCA 1997); Davidson v. Iona-Mcgregor Fire Prot. & Rescue Dist., 674 So. 2d 858, 860 (Fla. 2d DCA 1996).
“Obesity,” according to the AMA, occurs when an individual has a body mass index (BMI) of at least 30. The Centers for Disease Control and Prevention estimate that 26.6 percent of all adults in Florida are obese under this definition. Thus, more than a quarter of a Florida employer’s workforce would be entitled to ADA protections (e.g., reasonable accommodation) due to their weight alone. Under the ADAAA, an employer could be liable for obesity discrimination even if an individual is not technically obese, so long as the employer subjectively regarded the individual as disabled due to perceived obesity.
To lower the risk of liability for discrimination, employers should not take adverse employment actions against an obese individual (including refusing to hire) based on that individual’s obesity. In addition, requests for accommodation based on obesity (e.g., plus-size uniforms, special chairs, modified security equipment, or workspace alterations to enable obese employees to perform their essential job functions) should be reviewed carefully. The defenses against providing an accommodation, such as undue hardship and safety, will still apply. Finally, employers should ensure employees are trained that obesity may be a protected characteristic for discrimination purposes and that clear policies prohibiting harassment on the basis of obesity and other disabilities must be followed.
Defenses to discrimination based on obesity include business necessity and direct threat. In certain circumstances, based on the employer’s business, a weight requirement is a business necessity that may disqualify obese individuals from being eligible for work. See, e.g., Metro. Dade County v. Wolf, 274 So. 2d 584, 585 (Fla. 3d DCA 1973) (approving weight as a business necessity for a firefighter position). Employing or accommodating an obese individual may also be precluded if he or she presents a direct threat to the health and safety of that individual or others; that is, there would be significant risk of substantial harm that cannot be reduced or eliminated through reasonable accommodation.
With employment counsel, employers should consider reviewing their policies and procedures and training (and retraining) legal, human resources and managerial personnel about the wide range of circumstances that now may trigger a discrimination claim.