Under Title VII, discrimination may be “because of” race, color, religion, sex, or national origin even if the characteristic was not the sole motivating factor. In these “mixed motive” cases, the employer may limit a plaintiff’s recovery by showing that it would have made the same decision even if the plaintiff had not had the protected characteristic. But, even where the employer makes such a showing, it typically still has to reimburse the plaintiff’s costs and attorney’s fees for bringing the lawsuit under Title VII’s fee-shifting provisions.

In Carter v Luminant Power Services Co., No. 12-10642 (5th Cir. April 3, 2013), the Fifth Circuit re-analyzed Title VII and discovered that the fee shifting provision does NOT apply to “mixed motive” retaliation claims. Consequently, if a plaintiff claims an employer’s materially adverse action against him or her was motivated, in part, by retaliation, but the employer can show it would have made the same decision regardless of the employee’s protected activity, the plaintiff has to pay his or her own costs and fees.

This is at least a small victory for employers, but not enough to encourage retaliating against anyone. In other words, unlawful retaliation still isn’t worth the cost of admission.

Please click here to access the decision.