Employees Must Prove Retaliation Was “But-For” Cause of Employment Action

by BakerHostetler

Employers are well aware that poorly performing employees may lodge baseless retaliation claims as a smokescreen to interfere with legitimate discipline. In fact, the number of employee retaliation claims filed with the EEOC has nearly doubled in the past 15 years, and the law continues to create new opportunities for these kinds of claims. But on June 24, the Supreme Court handed down a win for employers in University of Texas Southwestern Medical Center v. Nassar, rejecting a standard of proof advocated by the EEOC in 2003 and reminding us that court deference to EEOC Compliance Guidelines is far from automatic.

What Happened in Nassar?

Dr. Naiel Nassar, a physician of Middle Eastern descent, worked as both a University of Texas Southwestern Medical Center faculty member and a staff physician at a hospital affiliated with the University. He believed a higher ranked physician was biased against him on account of his religion and ethnic heritage, so he complained of harassment and discrimination to the physician’s supervisor. In a letter, Dr. Nassar ultimately resigned his University position (but accepted a job offer from the hospital for a staff physician position), claiming to have been the victim of religious, racial, and cultural bias against Arabs and Muslims. After reading the letter, the supervisor expressed concern that his accused colleague had been publicly humiliated by Dr. Nassar’s letter and protested to the hospital concerning Dr. Nassar’s job offer, claiming that the University’s affiliation agreement required that all staff physicians also be members of the University faculty. The hospital withdrew Dr. Nassar’s job offer, and he filed suit, accusing the University of Title VII harassment resulting in his constructive discharge and retaliation as a result of the supervisor’s efforts to prevent the hospital from hiring him. A jury found for Dr. Nassar on both counts and awarded him over $400,000 in back pay and more than $3,000,000 in compensatory damages, later reduced by the trial court. The University appealed, and the Fifth Circuit vacated the jury verdict on the constructive discharge claim due to insufficient evidence but affirmed the retaliation award, finding that Dr. Nassar was required only to prove that retaliation was a “motivating factor” for the supervisor’s actions protesting his job offer, not the “but-for” cause of the actions. The University took it up to the Supreme Court.

The Supreme Court’s Decision

The Supreme Court disagreed with the appellate court, finding that Title VII retaliation plaintiffs must prove that retaliation was the “but-for” cause of the challenged employment action, not merely a “motivating factor” for the employer’s action. In so doing, the Court declined to follow 2003 EEOC Compliance Guidelines that advocated for the lesser “motivating factor” standard typically applied by courts to Title VII discrimination claims. The Supreme Court noted that the provision within Title VII applicable to retaliation claims specifically requires an employee to prove that an employer acted “because of” the employee’s protected activity and that Title VII discrimination claims are covered by separate sections of the Act that do not apply in the retaliation context. The Court found the EEOC Compliance Guidelines unpersuasive and not entitled to deference because the document spoke in general terms, contained circular reasoning, and gave no regard to the differences between these specific statutory provisions.

What Employers Need to Know

Nassar has important implications for employers.

The case emphasizes the importance of the ordinary meaning of statutory language, a general topic we addressed when discussing the Gross v. FBL Financial Services, Inc. case in our June 18, 2009 Client Alert. Indeed, Nassar builds upon the textualist approach and stands for the careful and critical examination of employment statutes as described in Gross. We can expect lower courts to consider and now revisit the text, structure, and history of statutes with similar “because of” causation standards. For example, the False Claims Act (FCA) retaliation statute speaks in terms of prohibiting retaliation “because of” lawful acts done by the employee in furtherance of an FCA claim or other efforts to stop one or more violations of the FCA. Several courts prior to Nassar have recognized the mixed motive theory for FCA retaliation cases, see, e.g., Fanslow v. Chicago Mfg. Center, Inc., 384 F.3d 469, 485 (7th Cir. 2004); Norbeck v. Basin Elec. Power Co-op, 215 F.3d 848, 851 (8th Cir. 2000), but other courts seemingly interpret FCA retaliation causation as requiring less than “but for” causation.  See, e.g., Shenoy v. Charlotte-Mecklenburg Hosp. Auth., 2013 WL 1943811 (May 3, 2013); McKenzie v. BellSouth Telecom., Inc., 219 F.3d 508, 514 n.4 (6th Cir. 2000).  As a result of Nassar, we can expect to see some further attention to this issue.

Nassar will impact the determination of which claims plaintiffs can bring together in a single lawsuit, the standard of proof required for each, and the scope of potential recovery on each claim. Discrimination and retaliation claims often are brought together, but the dissent in Nassar laments that the majority’s decision may confuse juries considering both discrimination and retaliation claims. A predicate question that the lower courts are sure to address is whether the “but for” causation standard precludes juries from considering certain claims together in the first instance. For example, claims of age discrimination and retaliation require a plaintiff to establish “but for” causation. This means that, according to Nassar, the plaintiff would have to prove that both age and retaliation “actually motivated the employer’s decision.” Such jury questions could seemingly lead to an impermissible mixed motive analysis that is now barred for both age and retaliation claims. While the majority of opinions following Gross have not interpreted the “but for” standard to require the dismissal of alternative claims at the pleading stage, lower courts will need to flesh out the potential for early dismissals based on the Nassar standard.

By any standard, Nassar is good news for employers.

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.

© BakerHostetler | Attorney Advertising

Written by:


BakerHostetler 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.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

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.


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.