Four years ago, a divided U.S. Supreme Court raised the bar for proving claims under the Age Discrimination in Employment Act. On Wednesday, employers urged the justices to impose the same high standard for retaliation claims under the nation’s major job bias law—Title VII—and under similarly worded laws.

One federal appellate judge has described the case as one of "exceptional importance," and not the least because retaliation claims are the fastest growing category of discrimination claims today. There is a split in the circuits over the proper standard of proof.

During Wednesday’s arguments in University of Texas Southwestern Medical Center v. Nassar, the justices appeared just as divided as they were in the 2009 ADEA decision, Gross v. FBL Financial Services, even with two new members on board since that ruling.

In Gross, the majority, led by Justice Clarence Thomas, held that a plaintiff must prove that age was the "but for" cause of the employer’s adverse action, meaning that age was the single or determining motive. No party in the Supreme Court case had sought that standard. Gross had won under a mixed motive jury instruction in which he had to prove that age was a substantial or motivating factor.

In Wednesday’s case, Dr. Naiel Nassar, a Muslim from the Middle East, was on the University of Texas faculty and also worked in a medical clinic affiliated with the university. He claimed that his supervisor harassed him because of his religion and national origin.

To avoid the supervisor, he explored with the clinic the possibility of resigning from the faculty but remaining in the clinic. He received a verbal offer of a position at the clinic. In his resignation letter to the university, he explained he was resigning because of the supervisor’s harassment. The university opposed the clinic’s hiring of him, stating that the affiliation agreement between the university and clinic required all clinic physicians to be faculty members. The clinic did not send a written job offer to Nassar.

Nassar sued the university, claiming it had interfered with his job opportunity because of his discrimination complaint and that constituted unlawful retaliation under Title VII. He won under a mixed-motive jury instruction.

Representing the medical center, Daryl Joseffer of King & Spalding immediately came under intense and skeptical questioning by justices Elena Kagan, Ruth Bader Ginsburg and Sonia Sotomayor, as he argued that Congress in 1991 amendments to Title VII intended two different standards of proof to apply—the higher standard of Gross for retaliation claims and the more plaintiff-friendly, motivating factor standard for substantive discrimination claims based on race, sex, religion, national origin or color.

"Is there ever a moment and is there ever a statute in the history of anti-discrimination laws where there has been a divorce, a different standard for retaliation than for substantive discrimination?" asked Kagan several times.

Joseffer said he could not point to anything specific. However, he told the justices that Title VII’s retaliation provision is separate from the provision on substantive discrimination based on race, sex, religion, national origin or color. Congress, in its 1991 amendments to Title VII, was codifying the mixed-motive standard that the justices had announced in Price Waterhouse v. Hopkins (1989), but the amendment only was to the substantive discrimination provision, not to the retaliation provision, he said.

But Congress did not have to amend the retaliation provision, countered justices Sotomayor and Kagan, because the court had said in a series of decisions that retaliation was included in the substantive discrimination provision which referred to any unlawful employment practice.

Joseffer argued that the court’s decision in Gross said that the 1991 amendments applied the mixed-motive standard to a relatively narrow category and the court would assume it was not applied anywhere else because that is what Congress did.

"Well, Gross is talking about outside of Title VII," said Kagan, adding that "Where Congress is specifically trying to make Title VII conform with Price Waterhouse, with the backdrop of our legislative drafting instructions, and with the backdrop of never distinguishing between retaliation and antidiscrimination, you know, how do you get to where you want to be? This would be, like — talk about elephants in mouse holes or talk about — you know, we can take up all our cliches, the dog that didn’t bark. You know, Congress doesn’t do things like this without saying something."

Justices Samuel Alito Jr. and Antonin Scalia saved their fire power for Nassar’s counsel, Brian Lauten of Dallas’ Sawiki and Lauten.

Picking up on Lauten’s claim that there is no reason why Congress might have wanted different standards for substantive discrimination and retaliation, Alito suggested the motivating factor standard creates special problems in the retaliation context. He offered a hypothetical involving an employee, who knowing he is about to be fired for a nondiscriminatory reason, makes a spurious discrimination claim in a way that embarrasses the employer. The employee subsequently is fired and sues claiming retaliation.

Justice Anthony Kennedy raised the same issue with Assistant to the Solicitor General Melissa Sherry who argued in support of Nassar. "The thrust of Justice Alito’s question was that retaliation claims are now quite common, and they can almost be used as a defensive mechanism, as a defense when you know you are about to be fired," said Kennedy. "And if that’s true, shouldn’t we be very careful about the causation standard?’

Sherry replied, "You can’t just scream ‘Discrimination’ when you’re, you know, when the writing is on the wall and you know you’re going to get fired." The appellate courts, she explained, uniformly have required a reasonable good faith belief that discrimination occurred. Frivolous cases, she added, are weeded out at summary judgment.

Chief Justice John Roberts Jr. suggested another reason for two different standards. Title VII’s substantive discrimination prohibition sets forth the basis principle of fair and equal treatment, while the retaliation provision is more functional—"an order removed from the basic principle."

Robust retaliation provisions are needed to ensure that the primary purpose of keeping substantive discrimination out of the workplace is achieved, she said, adding that is why the two are linked and why it makes sense to have one standard of causation.

The Nassar case was the last argument of the October 2012 term.

Marcia Coyle can be contacted at mcoyle@alm.com.