In 2009, the Supreme Court made it more difficult to prevail on a claim under the federal age discrimination statute by holding that a plaintiff must show that the protected activity was the “but for” cause of the adverse employment decision, rather than just one “motivating factor.” Yesterday, in a significant victory for employers, the Court broadened that holding to retaliation claims under Title VII of the Civil Rights Act of 1964. Univ. of Texas Sw. Med. Cent. v. Nassar.
Naiel Nassar was a doctor of Middle Eastern descent who worked for the University of Texas’ Hospital and served on its faculty. Nassar alleged that Dr. Beth Levine, his supervisor, discriminated against him based on his religion and ethnic heritage. He complained about Levine’s treatment to Levine’s supervisor, Dr. Gregory Fitz, on numerous occasions.
To distance himself from Levine, Nassar requested to work only at the Hospital without being on the University’s faculty. Upon receiving indications that his request could be accommodated, Nassar resigned his teaching position. He then sent Fitz a letter stating that his reasons for giving up his teaching position were Levine’s harassment of and bias against him.
After reading the letter, Fitz stated that he felt Nassar had “publicly humiliated” Levine and that it was “very important that she be publicly exonerated.” Upon learning that the Hospital had offered Nassar a staff physician position, as it had indicated it would, Fitz argued that the arrangement was inconsistent with the affiliation agreement between the Hospital and the University, which required Hospital staff to be University faculty. The Hospital then withdrew the offer, and in the litigation that ensued, it claimed it would have done so regardless of Nassar’s complaints.
A jury found in favor of Nassar on his discrimination and retaliation claims. On appeal, the Fifth Circuit (covering Texas, Louisiana, and Mississippi) affirmed the jury on Nassar’s retaliation claim on the grounds that Nassar needed only to show that his complaints about Levine’s harassment were a “motivating factor” in Fitz’s retaliatory act. Holding that the Fifth Circuit should have required Nassar to show that his complaints were the “but for” cause of the employment action, the Supreme Court reversed in a 5-4 decision authored by Justice Kennedy. Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, dissented.
The Court’s majority began by tracing the history of several of its prior employment discrimination decisions. In 1989, the Court held in Price Waterhouse v. Hopkins that a plaintiff could prevail on a so-called “status-based” discrimination claim – i.e., race, color, religion, sex, or national origin – by showing that the discrimination was a “motivating” or “substantial” factor in the adverse employment practice, even if other factors also motivated the practice (i.e., a mixed-motive standard). In 1991, Congress codified the mixed-motive standard by providing that a plaintiff established liability by “demonstrat[ing] that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”
The Court then found that its 1989 decision in Gross v. FBL Finan. Servs., Inc., which involved a claim under the Age Discrimination in Employment Act, was instructive. In Gross, the Court held that the statutory requirement that discrimination be “because of . . . age” should be read to require proof that age was the “but for” cause of the adverse decision.
Against this backdrop, the Court first found that while Title VII prohibits retaliation, the 1991 provision prescribing the use of the mixed-motive standard only listed five categories of status-based discrimination. The absence of retaliation from this list demonstrated that Congress intended to exclude it from the bases on which a plaintiff could prevail under the mixed-motive standard. Second, the Court found that the placement of the mixed-motive provision within the section of Title VII banning status-based discrimination signaled Congress’ intent to differentiate between such discrimination claims and retaliation claims. Third, the Court found that the “precise, complex, and exhaustive” nature of Title VII made it inappropriate to treat retaliation as a “corollary” to discrimination claims, as the Court had done in interpreting other anti-discrimination statutes.
Finally, the Court expressed a concern about the growing number of retaliation claims, which have doubled over the past 15 years. The Court warned that allowing the mixed-motive standard to apply to retaliation claims could contribute to the filing of frivolous retaliation claims, which would in turn drain the EEOC’s and courts’ resources. It also noted that deference to the EEOC’s interpretation of Title VII, which calls for the mixed-motive standard to apply, was not warranted because the agency did not explain the interplay between the status-based discrimination, anti-retaliation, and motivating-factor provisions of the statute.
Nassar is undoubtedly a major victory for employers. The holding will likely result in fewer retaliation cases reaching a jury, and consequently may stem the tide of retaliation claims. It may also lead to a stricter standard for retaliation claims under other federal statutes, such as the Americans with Disabilities Act. Arguably, Nassar is a natural outgrowth of the 2009 Gross decision, but the law is now clear that a plaintiff must show that his or her protected activity was the singular cause of the employer’s action, not just one of the causes.