Does an employee claiming retaliation under Title VII have to prove that an unfavorable action would not have occurred if he or she had not complained? Or, is it enough for the employee to prove that the employer had a desire to retaliate when it took an adverse action?

The Supreme Court heard argument yesterday in University of Texas Southwestern Medical Center v. Nassar, a case that will decide that question.

What's At Stake

For employers, the stakes are high. In many Title VII retaliation cases it hasn't been hard for the plaintiff to prove that the plaintiff made a protected complaint and, thereafter, experienced an adverse job action--a demotion, termination, denial of promotion or other setback. Often, the plaintiff's only real hurdle is proving that the unfavorable action occurred because of the prior complaint.

Currently, many courts (including those in the First, Sixth and Seventh Circuits) interpret the "because of" standard as requiring Title VII plaintiffs to prove that they would have been treated more favorably if they had not complained. "But for" the complaint, plaintiffs have to show, there would have been no adverse action. Other courts (including those in the Fifth and Eleventh Circuits) require plaintiffs to show only that a desire to retaliate was "a motivating factor" on the employer's part.

If plaintiffs have to meet only the "motivating factor" standard, they will win more retaliation cases. A plaintiff who makes an unfair accusation of discrimination may have little trouble proving that the complaint caused the employer to have negative feelings toward him or her at the time of an adverse decision. An employer can make sure it treats a complaining employee as if the complaint never happened, but even a well-intentioned employer can't always guarantee that the complaint will have no effect on how its personnel think about the employee who complained.

Under the "motivating factor" standard, an employer would still be allowed to avoid monetary damages by proving that it would have taken the same action anyway. It would have the burden of proof on that issue, however. Moreover, even if it met its burden, it would still be required to pay the plaintiff's attorneys fees.

Thus, if the Supreme Court rules that it is sufficient for a plaintiff to show that a prior complaint was a motivating factor for the employer, thousands of the Title VII retaliation claims filed each year immediately become more dangerous and expensive to resolve.

The Facts

Nassar was a physician employed by a medical school. After accusing his second-level supervisor of bias against Middle Easterners, he resigned from the medical school and sought unsuccessfully to become an employee of an affiliated hospital. In his Title VII retaliation lawsuit, Nassar claimed that the chair of his department at the medical school blocked the hospital from hiring him in retaliation for his prior complaint.

At trial, the medical school asked the judge to tell the jury that Nassar could not win unless he showed that "but for" his complaint the department chair would have approved his employment at the hospital. The medical school argued that the department chair would not have approved Nassar's employment by the hospital under any circumstances because a long-standing affiliation agreement required all physicians at the hospital to be employed by the medical school.

The judge ruled that Nassar was not required to prove that his complaint was the "but-for" cause of the department chair's actions. It would be enough, the judge told the jury, for Nassar to prove that a desire to retaliate against Nassar was "a motivating factor." The jury found that it was and returned a verdict in favor of Nassar. The judge then gave the medical school an opportunity to avoid responsibility for Nassar's monetary damages by proving that it would have taken the same actions even if Nassar had not complained. The jury was unconvinced and returned a large verdict in favor of Nassar.

The Supreme Court Argument

Predicting a Supreme Court decision based on the justices' questions at argument is hazardous. Four justices, however, showed signs that they agreed with the medical school and Justice Thomas is widely expected to join them. Thus, the case looks promising for employers.

Much of the discussion focused on the Civil Rights Act of 1991, which added a provision to Title VII allowing a plaintiff to prevail by proving that "race, color, religion, sex or national origin was a motivating factor for any employment practice."

Justices Roberts, Scalia, Alito and Kennedy focused on the omission of "making a protected complaint" from the new provision. They seemed persuaded by the medical school's argument that the "motivating factor" burden of proof applies only to the types of claims Congress listed -- not to retaliation claims.

Justices Ginsburg, Kagan and Sotomayor noted that Congress has never before created two different standards of proof within the same discrimination statute and expressed doubt that Congress truly intended to do so in Title VII. They suggested that Congress thought it was understood that its new "motivating factor" provision would apply to retaliation claims as well.

Justices Alito, Kennedy and Roberts, however, all seemed to express the view that Congress may have had valid reasons to require a higher standard of proof for retaliation suits. They noted, for example, that an employee who expects to be terminated or demoted can sometimes create a retaliation claim simply by complaining about discrimination in advance of the adverse action.

In addition, Justice Alito seemed concerned that an employee's embarrassing, public allegation of discrimination might cause almost any employer to think retaliatory thoughts. It would not be fair, his questions suggested, to allow a plaintiff to win merely by showing that the employer had retaliation on its mind, without requiring the plaintiff to prove that he or she would have been treated more favorably but for the complaint.

Takeaways

Employers who are defending Title VII retaliation cases should be sure to argue that the plaintiff has the burden of proving that he or she would not have experienced adverse action but for the plaintiff's prior complaint. Even in parts of the country where Title VII has been interpreted differently, it is important to make this argument, as the Nassar case may soon apply a more favorable rule, nationwide.

If the Supreme Court decides in favor of the medical school, defendants in Title VII retaliation claims may also consider whether they have grounds to ask for reconsideration of any prior rulings allowing a plaintiff to use a motivating factor standard.

Finally, however Nassar is decided, an employer's best protection against retaliation claims will continue to be contemporaneous written evidence of the real reason for taking any unfavorable actions against an employee. Employers may wish to use the Supreme Court's focus on retaliation claims as an opportunity to review their practices for documenting employee misconduct or performance problems.

The Supreme Court's decision is expected by the end of June.