Too Little, Too Late: The Supreme Court Adopts But-For Causation for Title VII Retaliation Claims

by Littler
Contact

On June 24, 2013, in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ___ (2013), the U.S. Supreme Court broke its long string of pronouncing expansive standards in the context of Title VII retaliation claims by requiring strict “but-for” causation and rejecting the more liberal “motivating factor” standard used for Title VII discrimination claims.  Going forward, a plaintiff will be required to prove “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”  While this more exacting causation standard may enable employers to defeat more retaliation claims at summary judgment, Nassar does not eliminate—or even reduce—employers’ need to guard against retaliation claims through sound policies, prompt investigations and supervisory training. 

Nassar’s Retaliation Claim

Dr. Naiel Nassar, a former professor at the University of Texas Southwestern Medical Center, sued the University for Title VII discrimination and retaliation after he was denied a position at the University’s medical clinic.  With respect to his retaliation claim, Nassar alleged the University did not hire him because, in his prior employment with the University, he made complaints of discrimination. 

Before the District Court and the Fifth Circuit Court of Appeals, Nassar and the University squared off on the causation standard for retaliation under Title VII:  the University maintained that Nassar needed to prove he would have been hired “but-for” his prior discrimination complaints, while Nassar argued he needed only to establish that those complaints were a “motivating factor” in the University’s decision.  The opposing positions mirrored a nationwide split on the Title VII retaliation causation standard.  The split originated from the U.S. Supreme Court’s 2009 decision in Gross v. FBL Financial Services, Inc., which held that “but-for” causation applied to ADEA retaliation claims.  Consistent with its heightened interest in retaliation claims, the Court granted certiorari to resolve the split the Gross decision inspired.

The Supreme Court’s Analysis

Retaliation claims have skyrocketed in recent years, which may explain why the Court has taken such an interest in them.  In 2012, 38% of all charges filed with the EEOC included a claim of retaliation.  At oral argument in Nassar, Justice Kennedy acknowledged this growing trend and warned that the Court should be very careful about the causation standard, especially where a failing employee claims retaliation as a “defensive mechanism” when termination appears imminent. 

With this concern as a backdrop, the Court approached the causation question by looking to the 1991 amendment to Title VII that established the “motivating factor” standard for discrimination claims.  The amendment provides that Title VII is violated “when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”  According to the Court in Nassar, excluding “retaliation” from the 1991 amendment evinces Congress’s intent to require plaintiffs to prove “but-for” causation for retaliation claims.

In adopting the “but-for” causation standard, the Court rejected arguments by Nassar and the government (which joined in the oral argument) that retaliation is synonymous with discrimination and, therefore, Congress did not need to separately mention retaliation in its 1991 amendment.  The Court acknowledged it has previously applied such reasoning in the context of broadly-worded anti-discrimination statutes, but found the reasoning to be “inappropriate in the context of a statute as precise, complex, and exhaustive as Title VII.”  The Court also rejected arguments that the “motivating factor” standard should be adopted because it is consistent with the EEOC’s interpretation, as expressed in the agency’s Compliance Manual and other published guidance.  Writing for a 5-4 majority, Justice Kennedy opined that the EEOC’s interpretation did not specifically address or reconcile the omission of retaliation from the 1991 amendment and relied on circular reasoning.  Therefore, the EEOC’s position was not sufficiently persuasive to warrant deference from the Court. 

While the dissent voiced strong objection to applying two different standards to claims of discrimination and retaliation under the same act, the majority maintained the distinction is not only mandated by the text of the statute, but also critical to the “fair and responsible allocation of resources in the judicial and litigation systems.”  Echoing concerns raised at oral argument, the Court again noted the upsurge in retaliation claims and worried that an employee facing demotion or termination “might be tempted to make an unfounded charge of . . . discrimination” to stage a retaliation claim to prevent the “undesired change in employment circumstance.”  According to the Court, a lower causation standard would make it difficult for employers to combat these frivolous claims at the summary judgment stage and, consequently, would divert judicial, administrative and employer resources from legitimate efforts to combat discrimination and harassment.

SCOTUS and Retaliation, Going Forward

Nassar is not the last we will hear from the Court on retaliation.  Only one month after oral argument in Nassar, the Court granted certiorari in Lawson v. FMR, LLC, a whistleblower case, which addresses the scope of retaliation claims under the Sarbanes-Oxley Act (SOX).  Next term, the Court will determine whether Section 806 of SOX, which applies to publicly-traded companies, extends to privately-held companies that contract with public companies.  Thus, Lawson is the Court’s next opportunity to either expand or further restrict the scope of retaliation claims.  Although the Nassar decision represents the latter, it may not indicate how the Court will proceed in Lawson

What Practical Steps Should Employers Take?

Although the Court in Nassar adopted the more exacting “but for” causation standard for Title VII retaliation claims, the application of this standard is unlikely to lead to a noticeable decrease in such claims.  When the Court imposed the “but-for” causation standard for ADEA retaliations under Gross, there was a nominal 1% decrease in age charges filed with the EEOC; at best, a similar decrease can be expected post-Nassar.  As such, employers must remain vigilant in responding to complaints of discrimination and take prophylactic measures to protect against retaliation claims.

To guard against such claims, employers should consider taking the following steps:

  • Develop and implement strong anti-retaliation policies.
  • Educate and train all managers and supervisors about unlawful retaliation and the company’s policies against it. 
  • Provide multiple avenues for reporting discrimination claims, at least one of which is outside of the employee's chain of command.
  • Promptly investigate all complaints of discrimination, using an outside investigator where appropriate.
  • Validate the legitimate business reasons for disciplining or terminating an employee who engaged in protected activity prior to taking any adverse employment action.
  • Ensure that the complaint, investigation, and conclusion(s) of an investigation are properly documented.     

Implementing these steps effectively will maximize an employer’s ability to utilize the reasoning and holding in Nassar to combat frivolous retaliation claims at the summary judgment stage.

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.

© Littler | Attorney Advertising

Written by:

Littler
Contact
more
less

Littler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.