Almost as soon as Justice Anthony Kennedy had finished announcing the U.S. Supreme Court’s ruling in University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (June 24, 2013), the decision was widely reported as a victory for employers — and rightly so. The Supreme Court’s holding that retaliation claims under Title VII of the Civil Rights Act are to be analyzed pursuant to the traditional “but for” causation standard, as opposed to the more liberal “motivating factor” standard applicable to discrimination claims, unequivocally raised the bar for any employee pursuing a claim of retaliation under Title VII.
However, predicting how lower courts will interpret and apply decisions from the Supreme Court is an inexact science, making it an open question as to the magnitude of any victory. Was Nassar a narrow ruling, expressly applicable only to retaliation claims under Title VII? Or was it a seismic shift that would inevitably impact other federal anti-discrimination laws, such as the Americans with Disabilities Act (ADA), 42 U.S.C. §1981, and the Family and Medical Leave Act (FMLA)? If early indications hold true, the impact of Nassar upon retaliation claims appears to be closer to the latter.
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