The U.S. Supreme Court recently heard oral argument in University of Texas Southwestern Medical Center v. Nassar, which concerns the causation standard for retaliation claims under Title VII. The 1991 amendment to Title VII permitted plaintiffs to pursue discrimination claims on a mixed motive theory, meaning that a plaintiff need only prove that the discrimination was a motivating factor in the adverse employment action at issue, without necessarily proving that the discrimination was a “but-for” cause of the adverse employment action. At issue in Nassar is whether Title VII retaliation claims can also be brought on a mixed motive theory.

Dr. Naiel Nassar left the University of Texas Southwestern Medical Center in 2006 after complaining that his direct supervisor had made discriminatory comments about his ethnic and religious background. Nassar then sought a new position at an affiliated AIDS clinic. The Medical Center’s management intervened and prevented the clinic from hiring him. Nassar alleged that it was in retaliation for his discrimination complaints. A jury awarded Nassar back pay and damages, and the 5th Circuit Court of Appeals upheld the jury’s verdict.

Before the Supreme Court, Nassar argued that Title VII’s statutory language and Supreme Court precedent permit mixed motive retaliation claims, just as the statute permits mixed motive discrimination claims. The Medical Center argued that, while discrimination claims under Title VII can proceed on a mixed motive basis, retaliation claims like Nassar’s cannot, instead requiring a showing that the plaintiff’s complaint of discrimination was the “but-for” cause of his adverse employment action.

The justices’ questioning at oral argument suggested division along the traditional liberal/conservative lines. For example, Justices Kagan and Sotomayor seemed skeptical of the Medical Center’s argument. Both justices pointed out that no other federal anti-discrimination statute applies different standards for retaliation and discrimination claims. Justice Sotomayor asked if anything in the act’s legislative history supports the medical center’s argument that Congress acted on policy reasons for treating retaliation claims differently. Meanwhile, Justice Alito suggested that “there might be a very good reason” that Congress might want a different causation standard for retaliation claims than for substantive discrimination complaints – i.e., to preclude groundless lawsuits alleging retaliation against spurious claims of discrimination. Chief Justice Roberts similarly suggested that retaliation is a step removed from Title VII’s core principle of prohibiting discrimination based on protected characteristics like race and sex.

The Court is expected to announce its decision in June. That decision could make it considerably more difficult for plaintiffs to establish retaliation claims under Title VII. We will report on the Court’s decision when it is announced.