Part 1 of 2: The U.S. Supreme Court Issues Two Employer-Friendly Opinions On Title VII In Vance v. Ball State Univ. and Univ. of Tex. Southwestern Medical Center v. Nassar

by Stoel Rives LLP

On one day recently, the U.S. Supreme Court issued employer-friendly opinions in two separate and long-awaited cases interpreting Title VII of the Civil Rights Act of 1964 (known simply as “Title VII”), the primary federal employment discrimination statute.  While both cases change little about what employers should be doing day-to-day to prevent unlawful discrimination in the workplace, both may have profound effects on the ability of employers to successfully defend against Title VII claims.  In fact, this was such a big day at the Supreme Court for labor and employment law that we’re going to blog about it twice!  Today, we blog about one of those cases, University of Texas Southwestern Medical Center v. Nassar, in which the Court increased the burden of plaintiff’s asserting retaliation claims under Title VII by requiring that they show their protected conduct was the “but for” cause of the adverse employment action.  

Later in the week, we’ll blog about the other case, Vance v. Ball State University, in which the Court narrowed the definition of “supervisor” to only those with actual authority to hire and fire employees, limiting the situations where employers can be liable for the discriminatory acts of lower-level employees. 

Nassar Requires “But For” Causation In Title VII Retaliation Cases Based On That Statute’s Structure

Title VII, as any reader of this blog probably knows, is the granddaddy of all federal anti-discrimination statutes. First enacted in 1964, its primary provision, 42 USC § 2000e-2, prohibits employers from taking employment action against employees “because of such individual’s race, color, religion, sex, or national origin.”  In 1991, Congress amended Title VII to, among other things, lessen the burden of proof on causation; plaintiffs bringing discrimination claims under Title VII need only show that a discriminatory motive was “a motivating factor...even though other factors also motivated the practice.” 42 USC § 2000e-2(m).  In other words, plaintiffs need not show that a discriminatory animus on the part of a manager was the only or even primary motive behind the employment action—if the employee’s race, gender, etc. was considered at all, the company could be liable for discrimination.  (Section 2(m) did create affirmative defenses that allow the employer to avoid money damages in these so called “mixed motive” cases if it can show that it would have taken the adverse action anyway regardless of the discriminatory motivation).

In Nassar, the Court addressed plaintiff’s causation burden under a different part of Title VII, Section 2000e-3, which prohibits retaliation, or taking employment action against employees “because” they oppose or complain about unlawful discrimination. 42 U.S.C. 2000e-3(a). Unlike the primary anti-discrimination provision in Section 2000e-2 and its “motivating factor” subsection (m), Section 2000e-3 does not contain any specific guidance on the burden required to show causation in a retaliation case.  Relying on traditional judicial principles for interpreting statutes, and in the process rejecting as unpersuasive contrary guidance issued by the Equal Employment Opportunity Commission (“EEOC”), the Court reasoned that the difference in the two provisions showed Congress must have intended there be a different, higher causation standard in retaliation cases.  Since the “because of” causation language in 2000e-3 was not modified further, the Court reasoned that Congress must have intended to apply to require the more traditional “but for” causation standard to retaliation applicable to most intentional tort causes of action (the common law analogue to statutory discrimination claims).  Plaintiffs in Title VII retaliation cases therefore must show that the employer would not have taken the adverse action “but for” the fact the employee had engaged in protected conduct; in other words, that the retaliatory motive was the primary cause, not merely “a motivating factor.”  The Court also based its reasoning on an earlier case, Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), in which it used a similar analysis to find that “but for” causation should be applied to age discrimination claims under a similarly-worded statute, the Age Discrimination in Employment Act (“ADEA”), which prohibits taking employment action “because of” age.

Possibly even more encouraging than this holding, the Nassar opinion goes on to note that the heightened causation burden applicable to Title VII retaliation claims would also help to serve an important public policy, namely helping courts winnow out dubious retaliation claims (in the Court’s parlance, facilitating “the fair and responsible allocation of resources in the judicial and litigation systems”).  The Court noted the explosion of retaliation lawsuits in recent years, and specifically described the situation—unfortunately likely all too familiar to some employers—of the troubled employee facing discipline or termination who tries to manufacture a retaliation claim by invoking unrelated complaints of discrimination.  If the Court were to apply the lesser “a motivating factor” causation standard, it noted that it would be too easy for employees to file meritless retaliation claims and too hard for employers to get them dismissed before trial.  It is refreshing and welcome to see the U.S. Supreme Court showing such an appreciation and concern for the practical effects its legal interpretations can have.

Reach of Nassar Beyond Title VII Retaliation Claims Is Unclear

Alas, Nassar does not address or alter the more permissive “motivating factor” causation standard that is still applicable to regular discrimination claims under Section 2000e-2 of Title VII.  Also, because its analysis turns so heavily on the specific statutory structure of Title VII, it is not clear how applicable the reasoning will be with respect to other anti-retaliation statutes, such as, for example, Oregon’s state law provisions equivalent to Title VII: ORS 659A.030(1)(a) (relating to discrimination) and (1)(f) (relating to retaliation).  On the one hand, Supreme Court decisions on basic legal principles applicable to discrimination cases are often persuasive.  Also, those Oregon statutes use similar “because of” causation language as Title VII and have no express “motivating factor” language similar to 42 U.S.C. § 2000e-2(m), suggesting that the higher “but for” causation standard might apply.  Federal courts in Oregon may be particularly likely to analyze Oregon retaliation claims under the higher “but for” causation standard in Nassar, since Oregon District Courts typically apply the same legal standards to parallel discrimination claims under state and federal law.  On the other hand, some Oregon state courts have interpreted Oregon’s state anti-discrimination and anti-retaliation statutes to require that plaintiffs only show “substantial factor” causation, which is somewhere in between the permissive “motivating factor” and heightened “but for” causation.

At any rate, the Nassar decision at least will likely provide much-needed help to employers facing retaliation claims under Title VII, and possibly under other statutes as well.  Stay tuned later in the week when we turn our attention to the Supreme Court’s other big recent Title VII decision, Vance v. Ball State University.

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.

© Stoel Rives LLP | Attorney Advertising

Written by:

Stoel Rives LLP

Stoel Rives 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.