On June 24, 2013, the U.S. Supreme Court issued a landmark decision, now requiring a heightened standard for Title VII retaliation plaintiffs to proceed to trial with their claims. Because of this decision, a plaintiff must now prove that the claimed adverse employment action would not have happened "but for" retaliation.
In University of Texas Southwestern Medical Center v. Nassar, the plaintiff, Naiel Nassar, a physician of Middle Eastern descent, became employed by the University of Texas Southwestern Medical Center in 1995, and also served as a physician for the Parkland Memorial Hospital. He complained to his superiors of discrimination by his immediate supervisor. The university had an agreement with the hospital, requiring the Hospital to offer vacant physician positions to university faculty.
Notwithstanding that agreement, because of the plaintiff's perceived discrimination, he sought to work for the hospital directly, without an affiliation with the university. In light of indications from the hospital that such an opportunity was possible, the plaintiff submitted a written resignation to the university, indicating that the reason for his resignation was his supervisor's harassment.
Thereafter, the university objected to the hospital's hiring of the plaintiff on the basis that it did not comport with the affiliation agreement. The hospital subsequently withdrew its offer to the plaintiff which resulted in his Title VII discrimination and retaliation claims against the university. Ultimately, the jury found for plaintiff on all claims and awarded him over $400,000 in back pay and more than $3 million in compensatory damages, which the District Court reduced to $300,000.
On appeal, the U.S. Court of Appeals for the Fifth Circuit vacated the jury's verdict regarding constructive discharge on the ground that Nassar presented insufficient evidence. The Fifth Circuit upheld the finding as to retaliation "on the theory that retaliation claims brought under § 2000e–3(a)—like claims of status-based discrimination under § 2000e–2(a)—require only a showing that retaliation was a motivating factor for the adverse employment action."
In a 5-4 opinion, written by Justice Anthony Kennedy, the Supreme Court vacated the Fifth Circuit's ruling on Nassar's retaliation claim. In so doing, the Court reasoned that Congress enacted Title VII against the backdrop of "textbook tort law," and incorporated "the default rule" that "an action is not regarded as a cause of an event if the particular event would have occurred without it."
The Court recognized that the Civil Rights Act of 1991, in part, codified the motivating factor framework set out in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), at 42 U.S.C. § 2000e–5(g)(2)(B), but concluded that "motivating factor framework" applies only to status-based discrimination in light of Congress' action of addressing only race, color, religion, sex and national origin in the motivating factor provision. The Court noted that Congress' action indicates its "intent to confine that provision's coverage to only those types of employment practices."
Relying on its holding in Gross v. FBL Financial Services Inc., 557 U.S. 167 (2009), that the "but-for" standard applies to Age Discrimination in Employment Act (ADEA) claims given the absence of statutory language in the ADEA mandating a motivating factor standard, the Nassar Court took the position that the clear meaning of the phrase "because [of opposition to] any practice made an unlawful employment practice" found in 42 U.S.C. § 2000e–3(a), requires proof of "but-for" causation. Moreover, the Court noted that Congress had, "in explicit terms" altered the causation standard for Title VII status-based claims, but chose not to do the same for Title VII retaliation claims "despite the obvious opportunity to do so in the 1991 Act."
The Nassar Court bolstered its conclusion with concerns for the allocation of judicial resources and reasoned that a less demanding causation standard would contribute to the filing of frivolous claims. It cited to statistics compiled by the Equal Opportunity Employment Commission which revealed that the number of retaliation claims filed in the past 15 years has nearly doubled (from slightly over 16,000 in 1997 to more than 31,000 in 2012) and now surpasses every type of status-based discrimination claim filed with the EEOC except race. It further noted that "[e]ven if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage."
Justice Ruth Bader Ginsburg tersely criticized the majority opinion. In doing so, she reasoned that retaliation about complaining about discrimination is "tightly bonded to the core prohibition and cannot be disassociated from it," because "retaliation in response to a complaint about proscribed discrimination is discrimination" on the basis of the characteristic Congress sought to immunize against adverse employment action."
She also notes that this decision "shows little regard for trial judges who must instruct juries in Title VII cases in which plaintiffs allege both status-based discrimination and retaliation." She asserts that requiring jurors to apply different standards will guarantee confusion.
In 2006, the Supreme Court decided Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). In Burlington Northern, the Court made it much easier for plaintiffs to bring retaliation claims by lessoning the actions constituting "adverse employment actions" to those that would "dissuade a reasonable worker from making or supporting a charge of discrimination." Notwithstanding that Nassar does not change the Burlington Northern standard for determining what constitutes an adverse employment action, the Nassar decision will make it much harder for Title VII retaliation plaintiffs to prevail. Moreover, given the Gross decision and Title VII's similar statutory schemes to other federal civil rights laws (to wit, the Americans With Disabilities Act, the Family and Medical Leave Act), we can anticipate defendants will argue that the "but-for" standard applies to retaliation claims brought under those statutes, claims brought pursuant to 42 U.S.C. § 1983 as well the Connecticut Fair Employment Practices Act. Given the strong dissent and in light of Congress's response to Price Waterhouse in the 1991 Civil Rights Act, we may see a congressional response to the Nassar decision.
While the dismissal of retaliation claims filed against employers might now be easier in light of this new heightened standard articulated in Nassar, it is important for employers to continue to be mindful of their general obligations under the anti-discrimination/anti-retaliation laws. Best practices dictate that policies should be reviewed periodically to ensure that they are legally compliant. These policies should address all forms of unlawful harassment and discrimination, and should note that retaliation is strictly prohibited.
Additionally, employers should provide appropriate training to employees and supervisors. Finally, when complaints are lodged, employers should conduct prompt and thorough investigations and take appropriate remedial action where a violation has been found. •