Court Rejects Less Stringent ‘Motivating Factor’ Standard
A divided U.S. Supreme Court has ruled that retaliation claims under Title VII of the Civil Rights Act of 1964 must be established using a “but-for” causation standard, rejecting an employee’s argument that the lower “motivating factor” causation test applied. University of Texas Southwestern Medical Ctr. v. Nassar, No. 12-484 (June 24, 2013).
Justice Anthony Kennedy wrote the Court’s decision, joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. The Court found that the statute’s plain language and Title VII’s structure demonstrated that retaliation claims were not subject to the motivating factor standard. The Court 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 it lacked persuasive force. Justice Ruth Bader Ginsburg filed a dissent in which Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined.
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. Dr. Nassar complained to Dr. Gregory Fitz, Dr. Levine’s supervisor, about Dr. Levine’s alleged conduct.
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 submitted a letter of resignation to Dr. Fitz in which he stated his resignation was due to Dr. Levine’s harassment. The Hospital eventually offered Dr. Nassar a staff physician position; however, when Dr. Fitz learned of the offer, he protested the arrangement as inconsistent with the affiliation agreement. The Hospital withdrew its offer, and 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, as set forth in 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 Price Waterhouse v. Hopkins, 490 U. S. 228 (1989), the U.S. Supreme Court first examined the standard for proving causation in status discrimination cases. It ruled, in a plurality opinion, that an employee could establish causation by showing that the employee’s membership in a protected class was a “motivating” or “substantial” factor in the employer’s adverse decision. If the employee made that showing, the employer still could avoid liability if it proved that it would have taken the same employment action regardless of any discrimination.
Congress soon after enacted the Civil Rights Act of 1991 (the “1991 Act”), which amended Title VII by adding a provision (§2000e-2(m)), overruling in part the Price Waterhouse decision. After the 1991 Act, an employee showing that 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, attorney 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 set forth in § 2000e-3(a) of Title VII.
But-For Causation Required for Retaliation Claims
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 Court rejected the circular argument as unsupported by Title VII and the 1991 Act’s plain language.
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 should 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.” University of Texas, No. 12-484, slip op. at 14.
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 also rejected this argument, too, finding the manual was unsupported by law and thus not entitled to deference.
Accordingly, the Court concluded that retaliation claims must be proven “according to traditional principles of but-for causation, not the lessened causation test stated in §2000e-2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” The Court remanded the case to the lower court for further proceedings.
Justice Ginsburg dissented. She argued that having two standards of proof for discrimination and retaliation claims will burden trial judges and cause jury confusion. Justice Ginsburg also expressed concern that the majority opinion would undermine Title VII’s retaliation provision.
This opinion is welcome news for employers confronted with increasing numbers of retaliation claims. In fact, Justice Kennedy indicated that the heightened standard of proof will assist in obtaining the dismissal of “dubious claims at the summary judgment stage.”