50 for 50: Five Decades of the Most Important Discrimination Law Developments - Number 37: The Supreme Court Raises The Bar On Proving Retaliation

by Hirschfeld Kraemer LLP

Throughout this series, we have discussed how common retaliation claims have become and how challenging the courts have found it to define “causation” in the context of Title VII cases.   Those two trends intersected recently when the U.S. Supreme Court was called upon to decide what level of proof was required for an employee to prove that an employer retaliated against him.

The facts in University of Texas Southwestern Medical Center v. Nassar were straightforward.  Dr. Nassar, a professor of medicine at the University of Texas Southwestern Medical Center, sued the University for Title VII discrimination and retaliation.  On the retaliation claim, he maintained that he complained to senior management about derogatory comments his supervisor had made about his race.  Later, the hospital withdrew its job offer to Dr. Nassar on the suggestion of the same senior management employee to whom he had complained.

The case wound its way to the Supreme Court, which was called upon to decide what proof was needed for Dr. Nassar to prove retaliation.  Did he need to show that his complaint was a “but for” cause (i.e., the cause) of the decision to fire him or merely a “motivating factor” (i.e., one of many factors)?

In a welcome decision for employers, the Supreme Court found that employees would be held to the higher standard of proof, namely that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”   Why is that so significant?  Prior to Nassar, the Supreme Court had acknowledged lower court decisions (10th and 7th Circuit decisions) which stood for the proposition that very close temporal proximity — without more —  between the employee’s protected activity and the employer’s adverse employment action could prove causation.  Post-Nassar, those cases and that theory are called into question.

This “but for” causation requirement, however, does not completely eliminate or reduce the employer’s need to guard against retaliation claims through sound policies, prompt investigation and response, and supervisory training.  It just gives employers a better chance at obtaining summary judgment, at least for Title VII retaliation (but not discrimination) claims.  And, of course, the Nassar decision has far lesser impact on California employers who are more likely to face claims brought under California’s Fair Employment & Housing Act (the “FEHA”) and not under Title VII.  But California employers did receive similar good news in Harris v. City of Santa Monica, 56 Cal. 4th 203 (2013), in which the California Supreme Court held, in a mixed motive case, that plaintiffs alleging unlawful discrimination under the FEHA need to prove that illegal discrimination was a “substantial factor” motivating the adverse employment action (rather than it being just “a” motivating factor for the adverse employment action).  The “substantial factor” standard more effectively ensures that liability will not be imposed based on mere thoughts, feelings, or passing statements unrelated to the disputed employment decision.  While the Harris decision is silent regarding its applicability to FEHA retaliation claims, the same term “because” appears in both sections of FEHA addressing discrimination and retaliation, respectively, and previous California cases analogize the two sections, it is likely that the “substantial factor” test will be found to be applicable to FEHA retaliation claims as well (and, in fact, Harris is cited in the CACI Jury Instructions for FEHA retaliation (CACI 2505) as well as for FEHA discrimination claims).


Written by:

Hirschfeld Kraemer LLP

Hirschfeld Kraemer 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 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.