For Employers, Nassar Ruling Should Ease Validations Of Employment Actions And Early Disposal Of Frivolous Lawsuits

by Pepper Hamilton LLP

The Supreme Court of the United States recently adopted a strict causation standard that will make it more difficult for employees seeking to prove retaliation in violation of Title VII of the Civil Rights Act of 1964. In University of Tex. Southwestern Med. Ctr. v. Nassar, No. 12-484, 2013 U.S. LEXIS 4704 (June 24, 2013), the Court decided the standard that applies to employees suing for retaliation under Title VII.

In retaliation cases, a plaintiff must establish three elements: (1) protected activity such as complaining of discrimination or participating in a discrimination investigation; (2) adverse employment action like discharge, constructive discharge, demotion or creating a hostile work environment; and (3) causation—i.e., that the adverse employment action was taken because of the protected activity. Of the three elements, the parties are frequently in dispute over the causation element. The level of proof needed to establish causation is an issue that courts wrestle with in many contexts, and a number of different standards for proving causation have been adopted for different causes of action.

In the Nassar case, the Court ruled that, to prevail on a retaliation claim brought under Title VII, an employee must show that the employer would not have taken the adverse employment action “but for” a desire to retaliate against the employee for engaging in protected activity. This “but-for” causation test stands in contrast to the less stringent causation test the Court adopted for Title VII status-based discrimination cases in Price Waterhouse v. Hopkins, 409 U.S. 228 (1989) where an employee need only show that his or her protected characteristic (e.g., her race, color, religion, sex, or national origin) was a motivating factor in the employer’s adverse action. In 1991, Congress amended Title VII to include the “motivating factor” standard to status-based discrimination provisions.

In Nassar, the plaintiff, a physician of Middle Eastern descent, made an internal complaint in which he alleged that the defendant’s Chief of Infectious Disease Medicine, Dr. Levine, was biased against Nassar because of Nassar’s religious and ethnic heritage. Nassar later resigned from his position with the defendant medical center, publicly citing the harassment of Dr. Levine as the reason for his resignation. Specifically, Nassar sent a letter to Dr. Levine’s supervisor, Dr. Fitz, and other staff members, alleging he was resigning due to harassment by Dr. Levine that stemmed from religious, racial and cultural bias. Although Nassar was prepared to accept another offer of employment with a health care facility affiliated with the medical center, that offer was withdrawn following Nassar’s public allegations regarding Dr. Levine and Dr. Fitz’s opposition to the offer. Dr. Fitz contended he opposed the offer because Nassar’s employment was not consistent with certain administrative requirements, however, at the same time he openly expressed his consternation at Nassar’s accusations against Dr. Levine.

Nassar filed suit under Title VII in the Northern District of Texas alleging: (1) status-based discrimination based on his ethnicity and religious beliefs; and (2) retaliation for complaining about Dr. Levine’s harassment. As to his discrimination claim, Nassar claimed Dr. Levine’s racially and religiously motivated harassment resulted in his constructive discharge. In support of his retaliation claim, Nassar alleged that the affiliated health care facility failed to hire him in retaliation for his complaints about Dr. Levine’s harassment. The jury found for Nassar on both claims after the District Court judge instructed the jury to apply the “motivating factor” causation standard on both claims. On appeal, the Fifth Circuit vacated the discrimination verdict, but affirmed the retaliation verdict, ruling that, like status-based discrimination claims under Title VII, a plaintiff may prove retaliation by showing that retaliation was a motivating factor for an adverse employment action, rather than its “but-for” cause. The Court found that the evidence supported a finding that Dr. Fitz was motivated, at least in part, to retaliate against Nassar for his complaints about Dr. Levine.

The Supreme Court vacated the decision of the Fifth Circuit, finding that, in a Title VII retaliation action where there are both retaliatory and non-retaliatory reasons for the employment decision at issue, an employee may prevail only if he can show that his protected activity was a “but-for” cause of the alleged adverse action. The Supreme Court remanded the matter for further proceedings consistent with its opinion. The Supreme Court’s decision was based, in part, on the text, structure and history of Title VII. The Court also relied on its earlier decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (June 18, 2009), which held that language in the Age Discrimination in Employment Act of 1967 (ADEA) “because of ... age” meant that a plaintiff must show that the prohibited criterion (age) was the but for cause of the prohibited conduct (discrimination). The Court noted that, like the ADEA, Title VII’s anti-retaliation provision makes it unlawful for an employer to take an adverse employment action “because of” certain criteria. The Court also found as significant that, like the ADEA, Title VII’s anti-retaliation provision does not include the “motivating factor” standard that is found in Title VII’s provision addressing status-based discrimination.

The Nassar decision is good news for employers, who continue to see the number of retaliation claims rise, with 38 percent of all charges filed with the Equal Employment Opportunity Commission in 2012 alleging some form of retaliation.1 Similar to the Court’s application of Gross, an ADEA claim, to this matter, a Title VII claim, employers should anticipate that other federal and state courts may rely on Nassar and apply this “but-for” standard to other federal and state statutes that contain anti-retaliation provisions. The new, more difficult standard of proof announced by Nassar should make it easier for employers to prove that an employee would have been subject to an adverse employment action whether or not he complained. The ruling should also aid employers in disposing more frivolous lawsuits at the earlier phases of litigation.


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.

© Pepper Hamilton LLP | Attorney Advertising

Written by:

Pepper Hamilton LLP

Pepper Hamilton LLP 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 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:

- 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.