Plaintiff Must Prove Retaliation Was Sole Factor Motivating Adverse Employment Action In A Title VII Retaliation Claim

A doctor and university medical school faculty member experienced conflict with a new supervisor that appeared to be related to his racial descent.  The doctor sued the university, alleging the university staff had engaged in racial discrimination and retaliatory employment actions that violated Title VII of the federal Civil Rights Act.  The doctor won a jury trial.  On appeal, the Fifth Circuit Court of Appeal held that on the retaliation claim, the doctor only had to prove that retaliation was one of several factors motivating the adverse action.  The United States Supreme Court disagreed, concluding that in retaliation claims under Title VII, a plaintiff must prove retaliation was the sole factor motivating the employer’s action. (University of Tex. Southwestern Medical Center v. Nassar (--- S.Ct. ----, U.S., June 24, 2013).

Facts

Dr. Nassar, an HIV/AIDS specialist of Middle Eastern descent, was a faculty member of University of Texas Southwestern Medical Center (“University”), a medical school.  The University had an affiliation agreement with Parkland Memorial Hospital (“Hospital”) requiring the Hospital to offer staff physician openings to University faculty members.  Thus, most of the Hospital staff physicians were University faculty.

In 2004, the University hired a new Chief of Infectious Disease Medicine, Dr. Levine, who closely scrutinized Dr. Nassar’s work productivity.  Dr. Levine also made multiple verbal remarks antagonistic towards Dr. Nassar’s ethnic group.  To avoid working under Dr. Levine’s supervision, Dr. Nassar attempted to arrange with the Hospital to work as a staff physician without being a faculty staff member.  After securing a verbal job offer from the Hospital, Dr. Nassar sent a letter to Dr. Levine’s supervisor and others stating that he was resigning his teaching position due to Dr. Levine’s harassment.  The letter upset Dr. Levine’s supervisor, Dr. Fitz, who sought to publically exonerate Dr. Levine.  Dr. Fitz interceded with the Hospital, protesting that the arrangement with Dr. Nassar violated the affiliation agreement between the University and the Hospital.  The Hospital withdrew Dr. Nassar’s job offer.

Dr. Nassar filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), which found that Dr. Nassar presented credible evidence that the University had retaliated against him for making allegations of discrimination by Dr. Levine.  Having cleared that administrative hurdle, Dr. Nassar next filed a federal lawsuit in district court alleging two violations of Title VII of the Civil Rights Act (“Title VII”).  The first alleged violation was a status-based discrimination claim that the University discriminated against him on the basis of his race, religion, and national origin, effectively firing him.  The second was a retaliation-based claim that Dr. Fitz’s intervention to reverse the Hospital’s job offer to Dr. Nassar was made to retaliate against Nassar for his complaints about Dr. Levine's harassment.  A jury agreed with Dr. Nassar on both claims, resulting in an award of over $400,000 in back pay and $300,000 in compensatory damages.

On appeal, the Court of Appeals for the Fifth Circuit vacated the jury’s finding on the status-based discrimination claim, holding instead that Dr. Nassar had not brought sufficient evidence to support the claim that he had effectively been fired.  The court of appeals affirmed the retaliation-based claim, finding when a plaintiff sues on such a claim, the plaintiff need only prove that retaliation was a motivating factor, not the sole, “but-for” cause of the adverse employment action. 

The University appealed the decision to the United States Supreme Court, which agreed to hear the case.

Decision

In a 5-4 decision and an opinion by Justice Kennedy, the United States Supreme Court vacated the Fifth Circuit decision.  The Court held that in a Title VII retaliation claim, a plaintiff must prove that retaliation was the sole, “but-for” factor for an adverse employment action, not merely one of the factors.

The Court began by noting that in civil lawsuits over injuries, tort law typically requires that a plaintiff show that the injury would not have occurred “but for” the defendant’s conduct.  The Court stated that in the absence of other rules, “but-for” causation is the default rule.  The Court noted that in 1991, Congress amended Title VII of the Civil Rights Act to clarify that in status-based discrimination claims, a plaintiff only had to prove that race, color, religion, sex, or national origin was a motivating factor for discrimination, not the only factor.  However, the Court stated that discrimination claims based on retaliation were subject to the “but-for” standard, not the motivating factor standard.

Next, the Court compared the language in the Title VII anti-retaliation provision with a similarly-worded provision in the Age Discrimination in Employment Act (“ADEA”).  The Court observed that the anti-retaliation provisions of both acts state that it is unlawful for an employer to take adverse employment actions “because” of certain specified actions.  The Court stated that it had concluded in a prior case that the use of “because” in the ADEA provision meant that “but-for” causation was the rule.  Therefore, the Court concluded it was appropriate to read the similar Title VII anti-retaliation provision as requiring “but-for” causation, even though status-based discrimination claims are subject to a different standard of proof.

The Court rejected Dr. Nassar’s arguments that Title VII retaliation claims should be subject to the same standard as status-based discrimination claims.  First, the Court stated that such an interpretation would be contrary to the plain language of Title VII.  The Court noted that the section of Title VII that discusses the motivating factor standard only lists race, color, religion, sex, or national origin claims and does not mention retaliatory actions.  Second, the Court opined that Dr. Nassar’s suggested interpretation would be inconsistent with “design and structure” of Title VII, because Congress put the motivating factor standard into the section on status-based discrimination claims, not the section on retaliation claims.  Also, the Court opined that other portions of Title VII expressly reference “all unlawful employment actions.”  Thus, if Congress had meant to specify that retaliation claims were subject to the motivating factor standard, it was capable of specifically saying so.

The Court distinguished the cases Dr. Nassar pointed to as supporting his arguments.  The Court explained that those cases concerned other anti-discrimination laws that were written more broadly than Title VII, which is “precise, complex, and exhaustive.”  Additionally, the Court pointed out that the Americans with Disabilities Act of 1990, enacted a year before Congress’s revisions to Title VII, contained an express anti-retaliation provision.  The Court stated that this demonstrated that if Congress wanted to include retaliation claims in Title VII’s motivating factor standard for status-based claims, Congress could have written the law accordingly.

The Court stated that public policy supported its decision, because EEOC retaliation claims are increasing, and so lowering the evidentiary standard for causation could result in the filing of more frivolous claims.  These frivolous claims could divert employer and government resources that might otherwise be directed to combating genuine workplace harassment.

Finally, the Supreme Court rejected Dr. Nassar’s argument that the EEOC’s compliance manual on discrimination issues should be accorded deference by the Court.  The manual stated that retaliation claims should be subject to the motivating factor standard, not the “but-for” standard. The Court stated that evaluating how much weight courts should give to an agency interpretation of law depended on the thoroughness, reasoning, consistency, and other persuasive factors of the interpretation.  The Court held that the explanations in EEOC’s compliance manual lacked “persuasive force” because the manual’s reasoning was circular and because it “failed to address the particular interplay” between Title VII provisions on retaliation claims, status-based claims, and the motivating factor standard.

Topics:  Adverse Employment Action, Civil Rights Act, Discrimination, Racial Discrimination, Title VII

Published In: Civil Procedure 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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