A stricter standard in retaliation cases

Supreme Court Title VII ruling may stem tide of filings against employers


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Q. Janice, vice president of Acme Corp., just received notice of a discrimination charge filed against the company by a former employee, Tom. The charge alleges the company discriminated against Tom on the basis of his sex when it failed to promote him to supervisor and a claim it retaliated against him for complaining when he was terminated 10 months later. How does the new U.S. Supreme Court decision in Nassar affect these claims?

A. In a closely divided 5-4 decision, the court held that a plaintiff must prove the stricter “but–for” causation standard to succeed in a retaliation claim under Title VII. In other words, the unlawful retaliation (for example, termination) would not have occurred in the absence of the alleged wrongful actions of the employer.

In reaching this holding, the court rejected applying the more liberal standard used in status-based discrimination claims that permits liability of an employer by merely proving that “race, color, religion, sex or national origin” was simply a motivating or substantial factor for any adverse employment action or practice taken by the company.

In University of Texas Southwestern Medical Center v. Nassar, Dr. Naiel Nassar, who is of Middle Eastern decent, was a faculty member at the university and an associate director at the affiliated Parkland Memorial Hospital. Nassar believed one of his supervisors, Dr. Beth Levine, discriminated against him based on his religion and ethnic heritage by making comments such as “Middle Easterners are lazy” and we “hired another one” and scrutinizing his work more than other doctors.

Nassar complained to Dr. Gregory Fitz, Levine’s supervisor. Because Nassar continued to believe Levine was biased against him, he resigned his teaching position to take a full-time position at the affiliated hospital. When he resigned, he sent a letter to Fitz and others stating that he was leaving because of Levine’s harassment. Fitz, upset with the public comments, later objected to the hospital’s job offer to Nassar, which was withdrawn.

Nassar brought a suit for racial and ethnic constructive discharge and retaliation in violation of Title VII. A jury found for Nassar on his constructive discharge claim because of racially motivated harassment by a superior. The jury also found that retaliation was a motivating factor in preventing Nassar from obtaining a position at an affiliated hospital.

On appeal, the Fifth Circuit Court of Appeals found support for the jury’s verdict as to retaliation but insufficient evidence of constructive discharge.

The Supreme Court explained that causation is proof that the employer’s conduct did in fact cause the employee’s injury. It noted that in the usual course, the law requires a plaintiff to show “that the harm would not have occurred in the absence of – that is, but for – the defendant’s conduct.”

However, the Civil Rights Act of 1991 applied a lessened causation standard to status-based discrimination under Title VII. It provided that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice even though other factors also motivated the practice.”

Under this new analysis, the employer would still be liable to the employee for discrimination if it proved that it would have taken the same employment action, and, while it could save itself from monetary damages, it would still be liable for paying attorney’s fees and costs and other injunctive relief.

The court majority found that the traditional but-for standard applied to retaliation claims. It reasoned that if Congress had intended the lesser “motivating factor” language to apply to retaliation and not just status-based discrimination (race, color, religion, sex, or national origin), it would have written the statute that way.

The court further noted that there is an “ever-increasing frequency” of retaliation claims being filed and worried that a lesser causation standard may produce unfounded or frivolous claims.

The dissent emphasized that retaliation is a form of discrimination and should be treated similarly in applying the “motivating” or substantial factor analysis. Applying two different standards in Title VII cases, the dissent argued, would confuse trial courts and juries and allow “proven retaliation to go unpunished.”

Over the past five years, the Supreme Court has broadened protections to employees for retaliation under Title VII, and retaliation has surged to the top of the list for filings at the EEOC. This holding, confirming the heighted standard for proving retaliation claims, may curb the increase in such claims. This decision also allows for the possibility of an employer obtaining summary judgment on a retaliation claim prior to trial.

For retaliation, the employee must prove that his termination would not have occurred in the absence of alleged wrongful actions. Thus employers should justify and support the legitimate business reasons for disciplining or terminating an employee who has engaged in protected activity. This decision also confirms that employers like Acme should continue to guard against retaliation and discrimination claims through strong anti-harassment and anti-retaliation policies, prompt investigations of all complaints and employee and supervisor training.

Jennifer L. Parent, a director in the Litigation Department and chair of the Employment Law Practice Group of McLane, Graf, Raulerson & Middleton, can be reached at 603-628-1360 or jennifer.parent@mclane.com.

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