Minnesota’s Supreme Court and its Court of Appeals have long followed federal cases in interpreting state civil rights laws analogous to Title VII of the Civil Rights Act (the federal anti-discrimination law), such as the Minnesota Human Rights Act and Minnesota’s Whistleblower Act. Thus, in retaliation cases, an aggrieved employee needed to prove only that the employer’s retaliatory motive was a “discernible, discriminatory, and causative” factor in the adverse employment decision. Graham v. Special School District No. 1, 472 N.W.2d 114 (Minn. 1991). This may be changing.
The U.S. Supreme Court, in University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (June 24, 2013), ruled that to prove retaliation under Title VII, the employee must show the employer’s alleged retaliatory motive was the “but for” cause of the adverse action against the employee. If the employee is unable to show retaliation was the actual cause of the adverse employment action, the employee has failed to prove retaliation, the U.S. Supreme Court held. (For more on Nassar, see our article, U.S. Supreme Court: Title VII Retaliation Claims Require Proof of ‘But-For’ Causation.)
If the Minnesota courts apply Nassar’s holding to state law claims, employees may have difficulty in establishing that a range of state statutes prohibiting retaliation protects them from adverse action in the face of impermissible employee behavior, such as substandard work performance or employee misconduct, for it will not be enough to show that retaliatory intent was only a motivating factor in the employer’s decision.
This lower standard has allowed employees to succeed in a claim where the employer’s alleged retaliatory motive was not the primary or predominant reason for an employer’s decision. This burden of proof has been viewed as frustrating the purpose of the retaliation statutes — to prohibit employers from retaliating against employees for engaging in lawful reporting activities, such as reporting discrimination or harassment. Minnesota’s anti-retaliation statutes were not intended to bar employers from managing legitimately the productivity and behavior of their employees (e.g., disciplining employees for legitimate reasons, such as substandard work performance and misconduct). Nassar offers the state’s courts an opportunity to eliminate a source of possible legal abuse in retaliation cases and ease a burden on Minnesota employers’ exercise of lawful management functions.