At the end of the term in June, the U.S. Supreme Court issued its decision in University of Texas v. Nassar, finding that Title VII retaliation claims require the employee to show that retaliation was the "but-for" cause of the employment action. In other words, an employee alleging retaliation must show that retaliation was the only cause behind the employment action. If it was one motivating factor among many—for example, if the employee was also frequently late to work and performing poorly—the employee may not be able to show unlawful retaliation under Title VII.

The Nassar Court separated Title VII claims into two categories: (i) status-based claims (i.e., discrimination on the basis of race, color, religion, sex, or national origin); and (ii) retaliation claims. Status-based claims under Title VII require a showing that the employee's status was only a motivating factor for the employment practice, even though other factors may have influenced the employer's action. The "motivating factor" test is a lessened causation standard Congress added in 1991. The employee in Nassar argued that the motivating factor test should also apply to claims of retaliation under Title VII.

After reviewing the statutory language, the Nassar Court determined that Congress' 1991 amendment applied only to status-based claims and not to retaliation claims. These two categories appear in separate sections of Title VII, and the language of the statutes indicates that Congress did not intend the motivating factor test to also apply to retaliation claims. Instead, the standard to be applied is but-for causation, where the retaliation itself must be the only reason for the discharge.

The Nassar Court also addressed the practical effect of maintaining this standard. It offered a hypothetical, where an employee who is performing poorly and is afraid of losing his or her job files a Title VII complaint as a means of staving off termination. Under the motivating factor test, this employee might be able to show retaliation if terminated, and the employer may therefore not want to risk terminating an otherwise poorly-performing worker. However, since the retaliation would not be the "but-for" cause behind the employment action, the employer could terminate an otherwise poorly performing employee without violating Title VII. Should you have any questions, please consult your relationship attorney.