Title VII of the Civil Rights Act prohibits “status-based” discrimination on the basis of race, color, religion, sex, and national origin, as well as retaliation. Specifically, Title VII prohibits employers from retaliating against employees who: (1) oppose employment discrimination; or (2) submit or show support for a complaint that alleges employment discrimination.
Congress and the United States Supreme Court have gone back and forth regarding the proper scope and implementation of this statute. The Supreme Court initially restricted Title VII claims to those where the employee proved that the discrimination was the “but-for” cause of the harm suffered by the employee—meaning that the employer is not liable if it can show that it would have taken the same action for other, non-discriminatory reasons. Congress reacted by amending the law in 1991 and specifying that employees must only show that the discrimination was a “motivating factor” in the employment decision, meaning that employees need only show that an improper motive was one of multiple reasons for the employment action. This was significant because the “mixed-motive” standard is more favorable for employees, as it is easier to satisfy.
The issue arose again in University of Texas Southwestern Medical Center v. Nassar, where the United States Supreme Court was faced with the issue of what standard of proof applies in retaliation cases. The Supreme Court analyzed whether Congress’ 1991 amendment extended to all of Title VII, including retaliation claims. Notably, since Congress’ 1991 amendment, the Supreme Court ruled that the stricter but-for causation standard applies to claims brought under the Age Discrimination in Employment Act. In Nassar, the Supreme Court analyzed whether employees merely show that an employer’s retaliation was a motivating factor in the decision, or whether they must show that the harm would not have occurred but-for the retaliatory intent.
In Nassar, a former University of Texas Southwestern Medical Center faculty member alleged that he was denied a job out of retaliation for a prior resignation letter alleging race discrimination. His letter accused his supervisor of making disparaging comments about his Middle Eastern descent. The Medical Center argued that Nassar needed to prove that he would have received the job but-for his resignation letter and, regardless of any retaliatory intent, it would not have hired him anyway for other legitimate reasons. Meanwhile, Nassar argued that he was only required to show that retaliation was a motivating factor—and not necessarily the only factor—for not receiving the job.
On June 24, 2013, the Supreme Court ruled that the motivating factor standard only applies to status-based discrimination claims - not retaliation claims. The Court’s narrow interpretation and finding that a stricter standard of proof applies to retaliation claims was based on a detailed analysis of the statutory text and structure. The Court noted that the anti-retaliation provisions in the statute appear in a different section than the ban on status- based discrimination, and that if Congress intended for the motivating factor standard to extend to retaliation claims, then retaliation claims would have been included in the list of claims in that provision. Thus, the Court concluded that the 1991 amendment was only intended to affect status-based claims. The Court recognized that as a common sense and practical matter, applying a heightened standard for retaliation claims makes sense given the ever-increasing frequency” with which retaliation claims are being filed and the potential for meritless litigation. For instance, employees foreseeing their termination might otherwise be inclined to submit a baseless discrimination claim shortly before they are fired to set up a future retaliation claim.
Nassar represents a clear win for employers. Not only does it make it harder for employees to prove these claims, but it will make it more difficult for employees to overcome the summary judgment stage and get their retaliation claims before a jury. This is significant as the number of retaliation claims filed with the Equal Employment Opportunity Commission has nearly doubled in the past 15 years—surpassing the number of claims for every type of status-based discrimination except race. Thus, Nassar may help reduce the high costs of defending these claims, reduce the potential settlement value of many others, and help reduce the number of frivolous claims, which will ultimately reduce the drain on resources by employers, administrative agencies, and courts.
If you have questions about the Nassar decision, need to defend a retaliation claim, or have any other employment law question, please contact one of our Employment Practices Liability Group Members.