“But For” the Supreme Court, Retaliation Claims Would Be Even More Difficult to Defend

Perhaps slowing a trend that has been expanding the rights of employees to bring Title VII retaliation claims, the US Supreme Court has, in a sharply divided 5-4 opinion, held that plaintiffs must show that unlawful retaliation was a but-for cause of the alleged adverse action by the employer, not just a motivating factor. Univ. of Texas Sw. Med. Ctr. v. Nassar, 2013 WL 3155234 (U.S. June 24, 1013).

Facts

Dr. Naiel Nassar (Nassar) is a medical doctor of Middle Eastern descent who specializes in internal medicine and infectious diseases. In 1995, he was hired to work both as a faculty member of the University of Southwestern Texas (the University) and as a staff physician at the University’s Hospital (the Hospital). He left both positions in 1998 for additional medical education and then returned to both positions in 2001.

In 2004, Dr. Beth Levine was hired as the University’s Chief of Infectious Disease Medicine. In that position Levine became Nassar’s ultimate (though not direct) superior. Nassar alleged that Levine was biased against him on account of his religion and ethnic heritage, a bias manifested by undeserved scrutiny of his billing practices and productivity, as well as comments that “Middle Easterners are lazy.”

On different occasions during his employment, Nassar met with Dr. Gregory Fitz, the University’s Chair of Internal Medicine and Levine’s supervisor, to complain about Levine’s alleged harassment. Despite obtaining a promotion with Levine’s assistance in 2006, Nassar continued to believe that she was biased against him. As a result, he tried to arrange to continue working at the Hospital without also being on the University’s faculty. After preliminary negotiations with the Hospital suggested this might be possible, Nassar resigned his teaching post in July 2006 and sent a letter to Fitz (among others), in which he stated that the reason for his departure was harassment by Levine. That harassment, he asserted, “stems from … religious, racial and cultural bias against Arabs and Muslims.” After reading the letter, Fitz expressed consternation at Nassar’s accusations, saying that Levine had been “publicly humiliated by th[e] letter” and that it was “very important that she be publicly exonerated.”

Meanwhile, the Hospital had offered Nassar a job as a staff physician, as it had indicated it would. On learning of that offer, Fitz protested to the Hospital, asserting that the offer was inconsistent with the affiliation agreement’s requirement that all staff physicians also be members of the University faculty. The Hospital then withdrew its offer.

After exhausting his administrative remedies, Nassar filed a Title VII suit in the United States District Court for the Northern District of Texas. He alleged two discrete violations of Title VII. The first was a “status-based” discrimination claim alleging that Levine’s racially and religiously motivated harassment had resulted in his constructive discharge from the University. Nassar’s second claim was that Fitz’s efforts to prevent the Hospital from hiring him were in retaliation for complaining about Levine’s harassment, in violation of Title VII’s anti-retaliation provision. The jury found for Nassar on both claims and awarded him over $400,000 in back pay and more than $3 million in compensatory damages. The District Court later reduced the compensatory damages award to $300,000.

On appeal, the Court of Appeals for the Fifth Circuit affirmed in part and vacated in part. Nassar v. Univ. of Texas Sw. Med. Ctr., 674 F.3d 448, 452 (5th Cir. 2012). The court first concluded that Nassar had submitted insufficient evidence in support of his constructive-discharge claim, so it vacated that portion of the jury’s verdict. The court affirmed as to the retaliation finding, however, on the theory that retaliation claims brought under Title VII, like claims of status-based discrimination, require only a showing that retaliation was a motivating factor for the adverse employment action, rather than its but-for cause. It further held that the evidence supported a finding that Fitz was motivated, at least in part, to retaliate against respondent for his complaints against Levine. The Court of Appeals then remanded for a redetermination of damages in light of its decision to vacate the constructive-discharge verdict. In January 2013, the Supreme Court granted the University’s petition for certiorari.

The Supreme Court’s Decision

Before the Court was the issue of what standard of proof applies in Title VII retaliation cases — must the plaintiff prove only that retaliation was a “motivating factor” in the decision or must he prove that he would have gotten the job but for the alleged retaliatory action? In a 5-4 decision authored by Justice Anthony Kennedy, the Court held that the plaintiff must show that “but for” the illegal act, his injury would not have occurred.

The Court noted that as a result of case law and amendments to Title VII in the Civil Rights Act of 1991, “status-based” discrimination claims could prevail if a plaintiff shows that a protected status such as race, color, religion, sex, or national origin was a motivating factor in the adverse employment action, not the only motivating factor. Indeed, the amended law states in pertinent part as follows:

[A]n 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.

The Court noted, however, that Title VII’s anti-retaliation provision appears in a different section of the statute, and states in relevant part:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

The Court held that the 1991 provision does not extend to the anti-retaliation provision of Title VII for two main reasons. First, the 1991 provision expressly extends only to claims of discrimination on the basis of “race, color, religion, sex, or national origin.” The Court reasoned that if Congress had intended to cover retaliation as well, it would have included it in that list. Second, the structure of the statute supported the theory that the 1991 amendment did not cover retaliation. Specifically, Title VII divides status-based discrimination and retaliation into two different provisions, and the 1991 amendment was passed as an amendment only to the status-based provision.

The Court rejected the Respondent’s argument that, because retaliation can be seen as a form of discrimination, there was no need for Congress to separately mention the retaliation provision. The Court acknowledged that it had previously construed statutes prohibiting only discrimination to implicitly prohibit retaliation as well. But it concluded that those decisions were not controlling, because Title VII expressly discusses retaliation and treats it differently from status-based discrimination.

From a policy perspective, the Court further reasoned that lessening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employers, administrative agencies, and courts to combat workplace harassment. The Court explained that:

Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation. If respondent were to prevail in his argument here, that claim could be established by a lessened causation standard, all in order to prevent the undesired change in employment circumstances. Even 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 … It would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent … Yet there would be a significant risk of that consequence if respondent’s position were adopted here.

For the above reasons, the Court reversed the Fifth Circuit’s decision and set forth the clear standard that a plaintiff making a retaliation claim under Title VII must establish that his protected activity was the but-for cause of the alleged adverse action by the employer.

Conclusion

Retaliation claims are among the most difficult for employers to defend. The Nassar case gives employers a better chance of prevailing against such claims, because the plaintiff’s causation burden is now higher. If you have any questions about the case or retaliation claims in general, please contact the authors or any other member of the Arent Fox Labor & Employment practice group.