On April 3, 2013, the Fifth Circuit affirmed a ruling from the U.S. District Court for the Northern District of Texas that a plaintiff was not entitled to attorney’s fees and costs under Title VII (42 U.S.C. § 2000 e-5(g)) where a jury returned a verdict in his favor on his retaliation claim because (it found) the employer would have taken the same challenged action in the absence of protected activity even though it had an impermissible motive. Carter v. Luminant Power Servs. Co., No. 12-cv-10642, 2013 WL 1337365 (5th Cir. April 3, 2013).

Plaintiff/Appellant Carter asserted claims of discrimination, retaliation and harassment against his former employer, Luminant Power Services Co. (Employer) following the termination of his employment. The U.S. District Court for the Northern District of Texas partially granted his motion for summary judgment, sending two claims of retaliation to the jury. The jury found that Carter’s protected activity was indeed a motivating factor in the Employer’s decision to impose discipline upon him and then terminate his employment, but it also found that the Employer would have taken the same actions even in the absence of his protected activity. Carter contended that he was entitled to fees and costs pursuant to 42 U.S.C. § 2000 e-5(g)(2)(B)(1) because he proved his protected activity was a motivating factor. The Employer, on the other hand, argued that the applicable portion of Title VII does not apply to mixed-motive retaliation claims. The district court sided with the Employer, and Carter appealed to the Fifth Circuit.

In affirming the district court, the Fifth Circuit analyzed the language of sections 2000 e-5(g) and 2000 e-2(m) of Title VII, which defines mixed-motive discrimination, along with the relationship between those two provisions. The Fifth Circuit interpreted the statutory language narrowly to find that, “at least for the purposes of Title VII, ‘discrimination on account of race’ does not include retaliation; likewise, employment practices motivated by retaliation are not employment practices motivated by race.” The Fifth Circuit acknowledged Carter’s argument that, since his protected activity centered around his having filed a charge of race discrimination with the EEOC, race was a motivating factor behind the retaliation in question and should therefore fall under the ambit of section 2000 e-2(m). Though it noted that such an argument “ha[d] some force,” the Court pointed out that Congress listed a variety of specific discriminatory practices that the section would cover, and that its “silence with respect to retaliation is informative.”

This standard certainly favors defendant employers, and we will monitor the reaction of courts in other circuits.