This is the second time in a month that a plaintiff suffers the consequences of the Supreme Court's new legal standard guiding Title VII retaliation cases. This time around, plaintiff won his trial under the more lenient standard. Now that the Supreme Court has rewritten the rules for these cases, the case returns to trial.
The case is Zhou v. State University of New York, a summary order decided on February 5. This case has been kicking around for quite some time. In 2011, the Court of Appeals ruled that plaintiff had enough evidence to win his retaliation claim. At the time, the legal standard under Title VII was the plaintiff can win if retaliatory motive played a "substantial or motivating" role in the adverse employment decision. In May 2013, the case proceeded to trial in the Northern District of New York, and plaintiff won his case, winning $600,000 in damages.
Shortly after plaintiff won the trial, the Supreme Court came down with the Nassar decision, which interpreted Title VII to mean that plaintiff wins if "the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." We call that "but-for" causation. It is no longer enough for plaintiff to show that retaliatory motive played a substantial role in the decisionmaking. Plaintiff now has to show that this motive actually made the difference. This may seem like a subtle change, but it is enough for the Court of Appeals (Jacobs, Calabresi and Wesley) to order that SUNY gets a new trial under the revised legal standard.
On January 14, the Court of Appeals handled a similar issue. In Cassotto v. Donahoe, the plaintiff won his retaliation trial under the old legal standard. The defendant then got a new trial because Nassar had revised the standard. On retrial, plaintiff lost the case, a devastating reminder that the Supreme Court's rulings have retroactive effect, and that a slight change in the jury instructions can make all the difference.