On one day recently, the U.S. Supreme Court issued employer-friendly opinions in two separate and long-awaited cases interpreting Title VII of the Civil Rights Act of 1964 (known simply as “Title VII”), the primary federal employment discrimination statute. While both cases change little about what employers should be doing day-to-day to prevent unlawful discrimination in the workplace, both may have profound effects on the ability of employers to successfully defend against Title VII claims. In fact, this was such a big day at the Supreme Court for labor and employment law that we’re going to blog about it twice! Today, we blog about one of those cases, University of Texas Southwestern Medical Center v. Nassar, in which the Court increased the burden of plaintiff’s asserting retaliation claims under Title VII by requiring that they show their protected conduct was the “but for” cause of the adverse employment action.
Later in the week, we’ll blog about the other case, Vance v. Ball State University, in which the Court narrowed the definition of “supervisor” to only those with actual authority to hire and fire employees, limiting the situations where employers can be liable for the discriminatory acts of lower-level employees.
Nassar Requires “But For” Causation In Title VII Retaliation Cases Based On That Statute’s Structure
Title VII, as any reader of this blog probably knows, is the granddaddy of all federal anti-discrimination statutes. First enacted in 1964, its primary provision, 42 USC § 2000e-2, prohibits employers from taking employment action against employees “because of such individual’s race, color, religion, sex, or national origin.” In 1991, Congress amended Title VII to, among other things, lessen the burden of proof on causation; plaintiffs bringing discrimination claims under Title VII need only show that a discriminatory motive was “a motivating factor...even though other factors also motivated the practice.” 42 USC § 2000e-2(m). In other words, plaintiffs need not show that a discriminatory animus on the part of a manager was the only or even primary motive behind the employment action—if the employee’s race, gender, etc. was considered at all, the company could be liable for discrimination. (Section 2(m) did create affirmative defenses that allow the employer to avoid money damages in these so called “mixed motive” cases if it can show that it would have taken the adverse action anyway regardless of the discriminatory motivation).
In Nassar, the Court addressed plaintiff’s causation burden under a different part of Title VII, Section 2000e-3, which prohibits retaliation, or taking employment action against employees “because” they oppose or complain about unlawful discrimination. 42 U.S.C. 2000e-3(a). Unlike the primary anti-discrimination provision in Section 2000e-2 and its “motivating factor” subsection (m), Section 2000e-3 does not contain any specific guidance on the burden required to show causation in a retaliation case. Relying on traditional judicial principles for interpreting statutes, and in the process rejecting as unpersuasive contrary guidance issued by the Equal Employment Opportunity Commission (“EEOC”), the Court reasoned that the difference in the two provisions showed Congress must have intended there be a different, higher causation standard in retaliation cases. Since the “because of” causation language in 2000e-3 was not modified further, the Court reasoned that Congress must have intended to apply to require the more traditional “but for” causation standard to retaliation applicable to most intentional tort causes of action (the common law analogue to statutory discrimination claims). Plaintiffs in Title VII retaliation cases therefore must show that the employer would not have taken the adverse action “but for” the fact the employee had engaged in protected conduct; in other words, that the retaliatory motive was the primary cause, not merely “a motivating factor.” The Court also based its reasoning on an earlier case, Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), in which it used a similar analysis to find that “but for” causation should be applied to age discrimination claims under a similarly-worded statute, the Age Discrimination in Employment Act (“ADEA”), which prohibits taking employment action “because of” age.
Possibly even more encouraging than this holding, the Nassar opinion goes on to note that the heightened causation burden applicable to Title VII retaliation claims would also help to serve an important public policy, namely helping courts winnow out dubious retaliation claims (in the Court’s parlance, facilitating “the fair and responsible allocation of resources in the judicial and litigation systems”). The Court noted the explosion of retaliation lawsuits in recent years, and specifically described the situation—unfortunately likely all too familiar to some employers—of the troubled employee facing discipline or termination who tries to manufacture a retaliation claim by invoking unrelated complaints of discrimination. If the Court were to apply the lesser “a motivating factor” causation standard, it noted that it would be too easy for employees to file meritless retaliation claims and too hard for employers to get them dismissed before trial. It is refreshing and welcome to see the U.S. Supreme Court showing such an appreciation and concern for the practical effects its legal interpretations can have.
Reach of Nassar Beyond Title VII Retaliation Claims Is Unclear
Alas, Nassar does not address or alter the more permissive “motivating factor” causation standard that is still applicable to regular discrimination claims under Section 2000e-2 of Title VII. Also, because its analysis turns so heavily on the specific statutory structure of Title VII, it is not clear how applicable the reasoning will be with respect to other anti-retaliation statutes, such as, for example, Oregon’s state law provisions equivalent to Title VII: ORS 659A.030(1)(a) (relating to discrimination) and (1)(f) (relating to retaliation). On the one hand, Supreme Court decisions on basic legal principles applicable to discrimination cases are often persuasive. Also, those Oregon statutes use similar “because of” causation language as Title VII and have no express “motivating factor” language similar to 42 U.S.C. § 2000e-2(m), suggesting that the higher “but for” causation standard might apply. Federal courts in Oregon may be particularly likely to analyze Oregon retaliation claims under the higher “but for” causation standard in Nassar, since Oregon District Courts typically apply the same legal standards to parallel discrimination claims under state and federal law. On the other hand, some Oregon state courts have interpreted Oregon’s state anti-discrimination and anti-retaliation statutes to require that plaintiffs only show “substantial factor” causation, which is somewhere in between the permissive “motivating factor” and heightened “but for” causation.
At any rate, the Nassar decision at least will likely provide much-needed help to employers facing retaliation claims under Title VII, and possibly under other statutes as well. Stay tuned later in the week when we turn our attention to the Supreme Court’s other big recent Title VII decision, Vance v. Ball State University.