In a Law360 article (subscription required), Steven J. Pearlman, co-head of Proskauer’s Whistleblower & Retaliation Group, recently commented on the U.S. Supreme Court’s landmark decision in University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (June 24, 2013), adopting a “but-for” causation standard for Title VII retaliation claims. In so ruling, the Court rejected, by a vote of 5 to 4, a decision of the U.S. Court of Appeals for the Fifth Circuit applying a less burdensome standard, i.e., that a plaintiff only need show that retaliation was one “motivating factor,” among others, that resulted in the adverse action.
According to Pearlman, “it’s very instructive that the court restated and agreed with the analysis in Gross [v. FBL Financial Services, Inc., 557 U.S. 167 (2009)], and took it a step further.” “The ability to look a juror in the eye and explain that the strict but-for standard governs a case is very powerful,” he stressed. Pearlman concluded with optimism “that you’re [likely] going to see this bleed into analogous statutes. . . [as] a boon for employers.”