After putting employees on the ropes with its decision in Vance v. Ball State University (which we blogged on here), the United States Supreme Court finished employees off with the 5-4 decision in University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (June 24, 2013). The Justices held a plaintiff making a retaliation claim under Title VII must establish that his or her protected activity was the “but-for” cause of the alleged adverse action by the employer, rather than just a motivating factor.
The University of Texas medical system is affiliated with Parkland Memorial Hospital (“Hospital”). The university medical center (“University”) is part of the system and specializes in medical education. The affiliation agreement requires the Hospital to offer vacant staff physician posts to University faculty members. Nassar, a University faculty member and Hospital staff physician, of Middle Eastern descent, claimed his supervisor at the University, Dr. Levine, was biased against him because of his religion and ethnic heritage.
Nassar lodged a complaint with Dr. Fitz, Levine’s supervisor, who arranged to allow Nassar to continue working at the Hospital, although he would resign his teaching post. Nassar penned a resignation letter to Fitz and several others, stating he was leaving because of Levine’s harassment. Fitz was upset by the letter, feeling Nassar publicly humiliated Levine. Fitz objected to the Hospital’s job offer, which was then withdrawn.
Lower Court Rulings
Nassar filed suit against the University alleging two Title VII violations. First, Nassar claimed Levine’s race and religious discrimination resulted in his constructive discharge from the University. Secondly, Nassar claimed Fitz retaliated against him by preventing the Hospital from hiring him after he complained about Levine’s harassment. A jury at the district court found for Nassar on both claims. The case was appealed to the Fifth Circuit, where the court vacated the judgment as to the constructive-discharge claim, but affirmed the retaliation finding.
The Fifth Circuit, applying the Price Waterhouse v. Hopkins principle held, status-based discrimination claims require only a showing that retaliation was a motivating factor for the adverse employment action, rather than its “but-for” cause. The court further held that the evidence supported a finding that Dr. Fitz was motivated, at least in part, to retaliate against Nassar for his complaints against Levine. The case was remanded for redetermination of damages. The petition for rehearing en banc was denied, and four judges dissenting from the Fifth Circuit’s decision not to rehear the case en banc, argued that the Circuit’s application of the motivating-factor standard to retaliation was erroneous.
A Circuit Divide
The lower courts were divided on the issue. The First, Sixth, and Seventh Circuits, relying on the Supreme Court’s decision in Gross v. FBL Financial Services, Inc. in an ADEA context, have held that unless Congress has stated otherwise, a plaintiff is required prove the defendants actions were the “but-for” cause for the adverse action. The Fifth and Eleventh Circuits have not applied Gross in a Title VII context, rather limiting that holding only to the ADEA.
What’s the Issue
Does the Title VII retaliation provision and similarly-worded statutes require a plaintiff to prove “but-for” causation or only proof that the employer had a mixed motive?
What are the different standards?
Courts have applied three different tests. The first is the “but-for” standard, which was adopted by the Court in Gross. The Court held the ADEA requires proof that age was the “but-for” cause of the adverse employment action. The second test was adopted by a plurality of the Supreme Court in Price Waterhouse. The “motivating factor” test for sex discrimination claims under Title VII requires the plaintiff show discrimination was a “motivating factor” in an adverse employment action. Lastly, courts have applied what is described as the “textbook tort law,” to most legal claims. A plaintiff must prove the harm would not have occurred “but-for” the defendant’s action.
In 1989, the Court’s decision in Price Waterhouse, a mixed motive discrimination case decided under Title VII, outlined what it means for an action to be taken “because of” a person’s race, religion, or nationality, and the decision stated a plaintiff could prevail on a claim of status-based discrimination, so long as he or she could show that one of the prohibited traits was a motivating or substantial factor in the employment decision. The burden would then shift to the employer to show that a discriminatory motive was not the “but-for” cause of the adverse employment action. Just two years later, In 1991, Congress amended Title VII to include the burden-shifting and lessened-causation framework of Price Waterhouse.
The Court did not address the problem of causation again until Gross, in 2009. In Gross, the plaintiff alleged discrimination in violation of the ADEA. The Court was faced with a different, yet similar statute. Gross did not adopt the Price Waterhouse interpretation, rather, the Court stated, “the textual differences between Title VII and the ADEA prevented us from applying Price Waterhouse.”
The University argued that Gross applies, and plaintiff is required to prove that the defendant’s acts were the “but-for” cause of the plaintiff’s injuries. Nassar argued that although the 1991 “mixed motive” provision affirmatively states it applies to claims of “race, color, religion, sex, or national origin” discrimination, it also covers retaliation claims. Nassar argued the Court has repeatedly concluded that general prohibition against sex and age discrimination implicitly prohibit retaliation.
The Supreme Court Decides
The Court relied on Congress’s language in Title VII’s antiretaliation provision, finding the antiretaliation statute, like the statute at issue in Gross (ADEA), makes it unlawful for an employer to take adverse employment action against an employee “because” of certain criteria. Finding no meaningful textual difference between the texts of the two statutes, the Court holds Title VII retaliation claims require proof that the desire to retaliate was the “but-for” cause of the challenged employment action.
Moreover, the Court notes the text of the “motivating-factor provision” addresses only five of the seven discriminatory actions, reaffirming Congress’ intent to confine that provision to only those types of employment practices.
The Supreme Court vacated the Fifth Circuit’s judgment, holding, Title VII retaliation claims must be proved according to traditional principals of “but-for” causation, not the lessened causation test stated in §2000e-2(m).
Employers can feel some relief in knowing that the “motivating factor” factor standard for Title VII race, color, religion, sex and national origin discrimination claims will not be extended to retaliation claims. On the other hand, employers must continue to recognize that retaliation charges are among the most frequently filed charges at the EEOC and that the rate at which those charges are filed is increasing. Even with the “but for” test required by Nassar, retaliation charges are difficult to defend against because it is a natural for people –and therefore jurors and EEOC investigators – to believe that a complaint would cause the employer to be “out to get” the employee, even if it that is not true.
To best avoid retaliation claims, employers should:
- Take an initial discrimination complaint seriously by conducting a prompt and thorough investigation and documenting and notifying the complaining employee of the results.
- Treat employees who complain about discrimination the same way they treat any other employees. There is no need to walk on eggshells, but make sure that any discipline or other adverse action is amply supported, particularly if it comes shortly after the initial complaint.
- Make sure the reasons for taking adverse action are thoroughly investigated and reviewed by HR and/or counsel for an objective viewpoint on whether the adverse action is merited because it is likely that any action taken will be closely scrutinized by the EEOC, and/or the courts.
- Train managers and supervisors to understand that negative references to the complaining employee in emails and other documents, such as calling him or her a "troublemaker" or a "cancer" almost certainly will come back to haunt them later.