"My Prior Complaint Was One Of The Reasons For The Adverse Employment Action": Mixed Motive Theories For Retaliation Claims Under Title VII

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Recently, the Supreme Court heard oral arguments in University of Texas Southwestern Medical Center v. Nassar, which addresses the causation standard for retaliation claims under Title VII. The Supreme Court has already held that Title VII permits plaintiffs to pursue discrimination claims on a mixed motive theory. A plaintiff only needs to prove that discrimination was a motivating factor in the adverse employment action in question. To compare, the Age Discrimination in Employment Act does not permit mixed motive theories under Gross v. FBL Financial Services, Inc. Instead a plaintiff must show that "but for" her age, she would not have suffered the employment action. At issue in Nassar is whether Title VII retaliation claims allow for mixed motive theories like Title VII discrimination claims or whether the plaintiff must show that "but for" her protected activity, she would not have suffered the adverse employment action.

As background, Dr. Naiel Nassar left the University of Texas Southwestern Medical Center in 2006 after he complained that his direct supervisor made discriminatory comments about his ethnic and religious background. Dr. Nassar then sought a new position at an AIDS clinic affiliated with the Medical Center. However, the Medical Center's management prevented the Clinic from hiring Dr. Nassar. As a result, Dr. Nassar filed a lawsuit against the Medical Center, alleging that it prevented his hiring at the Clinic in retaliation for his prior complaints. The case went to trial, and the jury returned a verdict in favor of Dr. Nassar, awarding him back pay and damages. The Fifth Circuit Court of Appeals affirmed the jury's verdict.

Before the Supreme Court, Dr. Nassar argued that Title VII's statutory language and Supreme Court precedent permit mixed motive theories for retaliation claims, just as the statute permits mixed motive theories for Title VII discrimination claims. In opposition, the Medical Center argued that Title VII retaliation claims, unlike Title VII discrimination claims, must meet the "but for" standard of causation. During oral argument, some Justices noted that Congress may want a different causation standard for retaliation claims than substantive discrimination claims. For example, a stricter standard for retaliation claims would discourage groundless lawsuits alleging retaliation against false claims of discrimination. Further, retaliation claims are distinct from Title VII's purpose, which is to prohibit discrimination based on protected characteristics.  

What does this mean for employers? If mixed motive theories are not permissible for retaliation claims under Title VII, disgruntled employees will have a much more difficult time establishing such claims under the strict "but for" standard. However, if the Court determines that this more stringent standard is not required for Title VII retaliation claims, employers should expect employees to continue filing such claims and seeking damages under mixed motive theories.

Topics:  Adverse Employment Action, Mixed Motive Cases, Retaliation, Title VII

Published In: Civil Procedure Updates, Civil Remedies Updates, Civil Rights Updates, Labor & Employment Updates

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.

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