By: Amy B. Messigian
In University of Texas Southwestern Medical Center v. Nassar, one of two employment-related opinions issued on Monday by the Supreme Court, a narrow majority held that a retaliation claim brought under Title VII of the Civil Rights Act of 1964 must be proved according to a strict but for causation standard. Under such a standard, a plaintiff must present proof that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”
The underlying facts of the Nassar case are somewhat complicated. The plaintiff, a medical doctor employed as a faculty member of the defendant medical center and staff physician for its affiliated hospital entity, resigned from the faculty claiming that the chief of infectious disease medicine at the medical center was biased against individuals of Middle Eastern heritage such as plaintiff. The hospital entity offered the plaintiff a full time position as staff physician, but later rescinded the offer after plaintiff’s former supervisor protested the job offer. The plaintiff sued, alleging that the medical center retaliated against him for his discrimination complaints by encouraging the hospital to rescind its job offer. A jury returned a verdict in the plaintiff’s favor and awarded more than $3 million in damages.
The medical center appealed, arguing that the judge had instructed the jury to apply a lesser standard of causation than required for a retaliation verdict under Title VII. Specifically, the judge told the jury it only had to find that retaliation was a motivating factor in the supervisor’s actions, called mixed-motive. The medical center argued that the judge should have told the jury it had to find that the discriminatory action would not have happened but for the supervisor’s desire to retaliate in order to hold the medical center liable for retaliation.
Though the Fifth Circuit affirmed the retaliation finding, the Supreme Court disagreed. Without deciding whether the facts of the case warranted a finding of retaliation, the Supreme Court determined that the wrong standard had been applied, warranting reconsideration by the lower court under the strict but for causation standard.
Although the opinion raises the burden of proof required of employees who bring retaliation claims and should be uniformly applauded by employers, the holding may create some confusion for juries in cases where both discrimination and retaliation claims are raised. By this ruling, the Supreme Court has adopted a different standard for retaliation claims and discrimination claims, the latter of which is tested under the more lenient motivating factor standard. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, dissenting in an opinion written by Justice Ruth Bader Ginsburg, criticized the use of a different standard for retaliation and discrimination claims: “The court shows little regard for the trial judges who will be obliged to charge discrete causation standards when a claim of discrimination ‘because of,’ e.g., race is coupled with a claim of discrimination ‘because’ the individual has complained of race discrimination. And jurors will puzzle over the rhyme or reason for the dual standards.”