Supreme Court provides new test for Title VII retaliation cases

The Supreme Court has ruled 5-4 that Title VII retaliation plaintiffs must show that their protected activity was the "but for"cause of the retaliation. This decision most likely repudiates Second Circuit precedent.

The case is University of Texas Southwestern Medical Center v. Nassar, decided on June 24. Title VII prohibits gender, race, national origin and religious discrimination. It also contains a retaliation provision that says the employer cannot punish an employee for opposing workplace discrimination. Under the Civil Rights Act of 1991, an employee's race or gender cannot be the motivating factor in the adverse personnel decision, i.e., termination, failure to hire, etc., "even though other factors also motivated the practice." But Title VII contains different language in retaliation cases: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practices made an unlawful employment practice by this subchapter ..."

See the difference between the two provisions? The plaintiff can win the underlying discrimination case if her race or gender was a motivating factor in the adverse employment decision. But her retaliation case requires proof that management retaliated "because of" her underlying complaint. Does this distinction mean anything? It does to the Supreme Court. Justice Ginsburg dissents for the Court's liberal wing, which seems to be in a permanent battle with their five conservative colleagues.

Writing for the five conservatives, Justice Kennedy notes that the Court held in 2009 that the Age Discrimination in Employment Act, which prohibits discrimination "because of" age, means that the plaintiff must show that discrimination was the "but for" reason, not simply a motivating or substantial factor. In plain English, "because of" is a more difficult burden of proof. Age must have made the difference. It is not enough to show it was simply a motivating factor among other factors. That interpretation of the ADEA carries over to Title VII retaliation cases, Justice Kennedy now holds.

The Court assumes that Congress intended to have different standards governing Title VII cases, depending on whether the plaintiff sues over status-based discrimination (race, gender, etc.) or retaliation. Really, this case is a good study in statutory interpretation. The Court will not assume that different language in separate portions of Title VII mean the same thing.

Fleshing out the opinion, the Court says that this interpretation has practical significance in light of the large number of retaliation cases that are filed each year. "Lessening the causation standard could also contribute to the filing of frivolous claims, which could siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment." Justice Kennedy gives us a worst-case scenario:

Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation. If respondent were to prevail in his argument here, that claim could be established by a lessened causation standard, all in order to prevent the undesired change in employment circumstances. Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage. It would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent. Yet there would be a significant risk of that consequence if respondent’s position were adopted here.

Many law review articles will be written about the above hypothetical. Is a lower standard a true risk for employers? If the employees makes an "unfounded charge of racial, sexual or religious discrimination," the case can be knocked out on a motion for summary judgment. And if management was about to fire the plaintiff before he made the unfounded charge, that is another basis for summary judgment. The hypothetical also assumes that rank-and-file employees would knowingly take advantage of a lower burden of proof. Most non-lawyers have no idea what the legal standard is for these cases.

For those of you who live, work and play in the Second Circuit, the new "but for" retaliation test changes things. In Hicks v. Baines, 593 F.3d 159, 164-165 (2d Cir. 2010), the Court said that a plaintiff can win her retaliation case "by proving that a retaliatory motive played a part in the adverse employment actions even if it was not the sole cause[;] if the employer was motivated by retaliatory animus, Title VII is violated even  if there were objectively valid grounds for the [adverse employment action].'" The "but for" causation test was not the law in the Second Circuit. It is now.