This morning, Supreme Court clarified the liability standard for Title VII retaliation cases. In University of Texas Southwestern Medical Center v. Nassar, the Court held that Title VII retaliation plaintiffs must prove that their protected activity was a "but for" cause of the adverse action they suffered. Merely showing that it was a "substantial motivating factor" in an employer's decision does not suffice.
For employers, the decision comes as a relief. As Justice Kennedy's decision notes, employees who suspect that they may be fired are sometimes "tempted to make an unfounded charge of racial, sexual, or religious discrimination," and then allege retaliation when the "unrelated adverse employment action" happens. Slip Op. at 18. In other cases, there may be conclusive evidence that a supervisor took action based on a plaintiff's poor performance. But the record may also reflect that the supervisor's understandable unhappiness about being accused of sexism or racism in an internal complaint. If a plaintiff needed to only meet a "lessened causation standard" for retaliation claims, it would "make it far more difficult to dismiss dubious claims at the summary judgment stage." Id.
The Supreme Court's decision in Nassar steers clear of this problem. The Court makes clear that a plaintiff alleging retaliation under Title VII must show that his or her complaints of discrimination were a "but for" cause of an adverse employment action. In other words, a plaintiff must show that he or she would not have suffered the adverse employment action if he or she had not complained. Accordingly, retaliation plaintiffs can no longer survive summary judgment, or prevail at trial, simply by pointing to a few nuggets of testimony in which a supervisor acknowledged being offended by an employee's accusations of racism, sexism, or anti-Semitism -- at least where an employer can show that it would have taken the adverse employment action anyway.
That being said, Nassar's effects should not be overstated. In Title VII discrimination cases, the "substantial motivating factor" standard remains intact. And, in most instances, a plaintiff alleging Title VII retaliation will also allege discrimination. Thus, employers seeking summary judgment will typically have to deal with a "lesser causation standard" for some of a plaintiff's claims. Additionally, Nassar's "but for" causation standard is already used in age discrimination cases under the ADEA, including for ADEA retaliation claims. Yet, in practice, employers have not found ADEA claims easier to defend. In most cases, the evidence supporting an employer's legitimate non-discriminatory reasons for an adverse employment action will either prevail or be found pretextual under both standards.
The biggest effect might be on jury verdict forms. Having clear "but for" language on verdict forms may result in less jury confusion than the nebulous, non-quantifiable "substantial motivating factor." And that, in turn, may lead to more jury verdicts for innocent defendants. On the whole, that is good news for employers.