Fenwick Employment Brief - July 2013: Employee Claiming Retaliation Must Meet Higher Standard of Proof


In another favorable ruling for employers, the Supreme Court in University of Texas Southwestern Medical Center v. Nassar clarified that employees must satisfy a higher “but for” standard of proof to prevail in a Title VII retaliation claim. In a discrimination case, a plaintiff may prevail by showing that his race or other protected status was merely a “motivating factor” in making an adverse employment decision even if the employer had other, lawful motives for the action (i.e., “mixed motive” liability). In contrast, to prove retaliation under Title VII, a plaintiff must show that “because” he opposed an unlawful employment action or filed a Title VII charge, the employer retaliated against him. Thus, the plaintiff must show that the desire to retaliate against him was the “but for” cause of the adverse employment action, i.e., mixed motive liability for retaliation is insufficient.

In University of Texas, plaintiff Naiel Nassar was a university physician of middle-eastern descent. He claimed that university supervisors discriminated against and harassed him on account of his religion and ethnic origin. Nassar complained and resigned his university faculty position. He was then offered a job at the university hospital as a non-teaching staff physician. According to Nassar, his faculty supervisor retaliated against him by causing the hospital to withdraw the job offer.

Nasser prevailed in the lower court by showing that retaliation was a motivating factor in the university’s decision to withdraw the hospital job. Reversing the lower court’s determination, the high court held that the matter must be re-tried with an instruction to the jury that retaliation is established only if the desire to retaliate was the but-for cause of the decision to withdraw the job offer.

Under California law, FEHA also prohibits retaliation “because” an employee “has filed a complaint, testified, or assisted in any proceeding under this part,” such that state courts may also find the Supreme Court’s ruling persuasive in FEHA retaliation cases.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fenwick & West LLP | Attorney Advertising

Written by:


Fenwick & West LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.