Supreme Court Requires “But-For” Causation for Title VII Retaliation Claims
In a victory for employers, the U.S. Supreme Court ruled in University of Texas Southwestern Medical Center v. Nassar, that employees asserting retaliation claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) must establish that the adverse employment action at issue would not have occurred “but for” an improper motive on the employer’s part. This “but for” causation standard, as opposed to the more plaintiff-friendly “motivating factor” causation standard used in Title VII discrimination claims, gives employers a better chance at defeating Title VII retaliation claims, particularly at the summary judgment stage.
The plaintiff, Dr. Naiel Nassar, is a medical doctor of Middle Eastern descent who filed suit against the University of Texas Southwestern Medical Center alleging that he was harassed on the basis of his religion and ethnic heritage and that the University retaliated against him by blocking his hiring as a staff physician after he complained about the harassment. At trial, the jury was instructed that Title VII retaliation claims, like Title VII discrimination claims, require plaintiff to show only that the retaliation was a “motivating factor” for the adverse employment action, rather than its “but for” cause. The jury returned a verdict for Nassar on both his discrimination and retaliation claims. The Fifth Circuit Court of Appeals reversed the verdict on the discrimination claim for insufficient evidence, but affirmed the verdict in Nassar’s favor on the retaliation claim.
“Motivating Factor” vs. “But-For” Causation
The question before the Supreme Court was whether the less burdensome “motivating factor” causation standard applicable to Title VII discrimination claims also applies to claims of unlawful employer retaliation under the statute. Under the “motivating factor” test, an employee needs to show only that retaliation was a motivating factor in the employer’s adverse employment action. Once that showing is made, the employer, to avoid liability for damages, is saddled with the burden of demonstrating that it would have taken the same action even in the absence of the discriminatory motive. Under the more demanding “but for” causation standard, however, an employee must prove that the adverse employment action would not have occurred if not for the retaliatory motive. The burden of proof remains at all times with the employee.
The Supreme Court’s Decision
The Court ruled that Title VII retaliation claims are governed by the more demanding “but for” causation standard. In reaching this decision, the Court relied heavily on both the structure and plain text of Title VII, as well as its prior decision in Gross v. FBL Financial Services, Inc.
As to the structure and language of the statute, the Court noted that the Civil Rights Act of 1991 (the “Act”) amended Title VII to provide that claims of discrimination based on race, color, religion, sex, or national origin are proven when the plaintiff shows that one of those protected characteristics was a motivating factor for an adverse employment action, even though other lawful factors also may have been considered. Significantly, however, the anti-retaliation provision of Title VII, found in a different section, provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” (Emphasis added). The Court noted that the 1991 amendment to Title VII was inserted only in the section of the statute addressing claims of discrimination and “says nothing about retaliation claims” indicating Congress’ intent to limit the motivating factor standard to discrimination claims.
In addition, looking back to Gross, where the Court interpreted the phrase “because of . . . age” under the Age Discrimination in Employment Act (“ADEA”) to require “but-for” causation, the Court observed the similarity between the causation language found in the ADEA and the anti-retaliation provision of Title VII – respectively, “because of” and “because.” Noting “the lack of any meaningful textual difference” between the two, the Court found support for the conclusion that “Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.”
In addition to its legal discussion, the Court also made some practical observations, highlighting the fact that retaliation claims are “being made with ever-increasing frequency,” and that a mixed motive standard for such claims would “contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment.” The combination of this observation and the Court’s reliance on the “because of” language found in the statute strongly suggests that a “but-for” causation standard would likely be applied to retaliation claims brought pursuant to other employment statutes that contain comparable “because” language, such as the Americans with Disabilities Act and Family and Medical Leave Act.
The Gibbons Employment & Labor Law Department regularly handles the defense of retaliation claims in both state and federal courts. Please feel free to reach out to us with any questions regarding this case or related litigation.