The United States Supreme Court recently raised the bar for plaintiffs attempting to bring Title VII retaliation claims. In University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), the Court considered for the first time whether the appropriate causation standard for retaliation claims, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., is the same as for other types of Title VII discrimination claims. Ultimately, it determined that retaliation claims require a higher, but-for causation standard.
Nassar, a physician of Middle Eastern descent, was a faculty member at UT Southwestern Medical Center and a staff physician at university-affiliated Parkland Memorial Hospital. Dr. Nassar’s ultimate supervisor at UT Southwestern was Dr. Beth Levine. Nassar accused Levine of harassment based on his religion and ethnic heritage. Nassar met with Levine’s supervisor, Dr. Gregory Fitz, to complain about the harassment. Nassar also tried to obtain a staff physician position at Parkland Memorial Hospital without remaining on the UT Southwestern faculty.
Nassar ultimately resigned his position with UT Southwestern. In a letter to Fitz and others, Nassar attributed his resignation to Levine’s harassment. Fitz was unhappy with Nassar’s letter, which Fitz claimed publicly humiliated Levine, and insisted that Levine be exonerated. Further, upon learning that Parkland Memorial had offered Nassar a staff physician position, Fitz protested, reminding the hospital that pursuant to its affiliation agreement with UT Southwestern, all staff physicians were to be members of the University faculty. The hospital then withdrew its offer to Nassar.
Nassar sued UT Southwestern for Title VII race and religious discrimination based on Levine’s conduct and for Title VII retaliation based on Fitz’s conduct. Considering the proper causation standard for each of these claims, the Court determined that Title VII prohibits two specific, but separate, types of discrimination. Status-based discrimination, is based on personal characteristics such as race, color, religion, sex, and national origin, and is found in § 2000e-2. The other, retaliation for opposition to employment discrimination or for supporting a complaint that alleges discrimination, is not based on personal characteristics and is found in an entirely separate section, § 2000e-3(a).
In the Civil Rights Act of 1991, Congress amended Title VII by adding, among other provisions, § 2000e-2(m). This amendment clarified that for purposes of status-based discrimination a plaintiff need only meet the lower causation standard: that the plaintiff’s personal characteristic was a motivating factor for the alleged unlawful employment practice. However, this provision does not address the causation standard for retaliation. Considering this apparently intentional decision by Congress to omit retaliation from the 1991 amendment, the Nassar Court concluded that the motivating factor standard for status-based discrimination does not necessarily apply to retaliation claims.
Rather, the Court determined that the retaliation language in § 2000e-3(a) is more comparable to that found in the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a), which requires that the discrimination be “because of” the individual’s age. Based on § 2000e-3(a)’s similar use of the word “because,” the Court concluded that the proper causation standard for Title VII retaliation claims is that required for ADEA claims. Namely, a plaintiff must establish that the desire to retaliate was the but-for cause of the challenged employment action, not simply a motivating factor.
This decision has significant implications, as it places a substantially higher burden on plaintiffs in retaliation claims than in other Title VII discrimination claims. The Court noted that this heightened standard is of great importance to deterring potential frivolous claims by plaintiffs seeking to avoid undesired changes in employment circumstances, especially given that retaliation claims are now more common than every other type of discrimination claim other than race discrimination according to the Equal Employment Opportunity Commission.