Standard of Causation in Title VII Retaliation Claims

In April, the Supreme Court heard oral argument in University of Texas Southwestern Medical Center v Nassar, a Fifth Circuit decision examining the appropriate standard of proof for Title VII retaliation claims. At issue is whether a plaintiff is required to prove but-for causation (e.g., the employer would not have taken an adverse employment action but for the employee’s age, race, gender, etc.) or only that the employer had a mixed motive (e.g., that an improper motive was but one of multiple reasons for the action). The mixed motive standard represents a lower standard of proof.

Nassar was a physician employed by the university at the university medical center. He did not get along with his supervisor, also employed by the university, whom he accused of racial and religious bias. To diffuse the situation, Nassar arranged to resign his position at the university in favor of direct employment through the medical center which would bring a change of supervisors. However, he alleges that after he complained of discrimination, in retaliation for his allegation, he was prevented from being hired. The university argued that even without the alleged retaliation, Nassar would not have been hired because of an agreement between the medical center and the university which stipulated all physicians working at the center had to be university faculty. As such, the retaliation could not be the but-for cause of the loss of his position. Nassar argued that in a Title VII retaliation case it is enough that the retaliation may have been a motivating factor in the decision.

In Price Waterhouse v Hopkins, the Supreme Court, in a fractured decision, held that Title VII requires a plaintiff to prove only that discrimination was a motivating factor for an adverse employment action. However, in Gross v FBL Financial Series, Inc. they held in a 5-4 decision that the ADEA requires a plaintiff to prove that age was the “but for” cause of an adverse employment action. The mixed-motive standard was codified in the 1991 Amendment to Title VII. However, it does not explicitly address retaliation. Circuit Courts have since been divided on whether a general rule has been established for retaliation provisions in federal statutes leading to the grant of certiorari in this case to resolve the conflict.

During arguments, attorneys for University of Texas Southwestern Medical Center argued that different standards apply in ADEA and Title VII suggesting that Congress distinguished between retaliation and discrimination in both the Title VII amendments and also in enacting the ADEA. Attorneys for Nassar argued against two standards saying Congress would not have intended to create two standards in the same statue without explicating them. The ruling in this case will likely have significantly impact on employers and their ability to defend themselves against retaliation claims. Such claims are the most frequently brought against employers.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.

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