The explosion of retaliation claims may skid to a halt or at least slow down after the Supreme Court's decision this week holding that plaintiffs making Title VII retaliation claims must establish that their protected activity was a "but-for" cause of the alleged adverse action by the employer.
In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court held that the text, structure, and history of Title VII demonstrated that merely showing that an employee's conduct in engaging in protected activity was "a motivating factor" in the employer's action was not enough.
That holding should eliminate what's become a standard practice from the employee playbook: when the employee senses discipline or termination on the horizon, the employee files a claim of discrimination based on a protected category/status such as age, sex, or race. Then, when the discipline or termination comes to pass, the employee asserts it was in retaliation for complaining of discrimination.
Employers should be thrilled that the Supreme Court saw that play clearly and removed it from the employee arsenal. As the Court noted, the number of retaliation claims has nearly doubled in the last 15 years and has outstripped every kind of status-based discrimination except race. The Court paid heed to the burden those claims place on employer and court resources, noting that the "proper interpretation" of the causation standard is "of central importance to the fair and responsible allocation of in the judicial litigation systems."
The Supreme Court also refused to give credence to the EEOC guidance manual's interpretation of Title VII that an employee could show retaliation merely by establishing that engaging in protected activity was "a" motivating factor. The Court said the agency's guidance on this issue was not entitled to deference under applicable law because it failed to address the statutory scheme, lacked a persuasive discussion and involved circular reasoning. This could open the door to further challenges to claims that the EEOC's guidance on an issue is entitled to deference from the courts.