In the final oral argument of the October 2012 term, the Supreme Court appeared staunchly divided on what causation standard should apply in a Title VII employee retaliation claim. If the Court extends its holding in Gross v. FBL Financial Services, Inc., and rules that plaintiffs must prove “but for” causation—that an employer would not have taken an adverse employment action but for an improper motive—it may hinder retaliation claims and substantive employment discrimination claims, plaintiff attorneys say. (U. of Texas S.W. Med. Ctr. v. Nassar, No. 12-484 (U.S. oral arg. Apr. 24, 2013).)
The question the Court certified was whether Title VII’s retaliation provision requires a plaintiff to prove but-for causation or a mixed motive—that improper motive was one of multiple reasons for the adverse employment action. The mixed-motive test, also known as the “motivating factor standard,” was codified in the 1991 amendment to Title VII, requires a lower burden of proof than but-for causation, and applies to Title VII substantive discrimination claims based on race, sex, religion, national origin, or color. In 2009, the Court faced a similar issue in Gross when it held 5-4 that a plaintiff must prove but-for causation in cases brought under the Age Discrimination in Employment Act.
The University of Texas Southwestern Medical Center argued that the but-for standard should apply to Title VII retaliation claims. Naiel Nassar, a university faculty member who worked at the associated hospital’s medical clinic, argued that the motivating factor standard should apply to retaliation claims.
In 2004, Beth Levine was hired to supervise the clinic. Nassar claimed Levine discriminated against and harassed him because he was a Middle Eastern Muslim. To avoid her, he explored the possibility of resigning from the faculty and remaining with the clinic. The clinic extended a verbal employment offer in 2006, and Nassar resigned the following month, blaming Levine’s harassment. But the clinic never extended a written employment offer, so Nassar claimed that the university opposed the clinic’s hiring of him.
He sued the university in federal district court in 2008, alleging constructive discharge and unlawful retaliation in violation of Title VII. He argued that the university interfered with his job opportunity at the clinic because of his discrimination allegations.
When the case went to trial in 2010, a mixed-motive instruction was given to the jury on the retaliation claim. The jury found that Nassar’s resignation was due to constructive discharge and that the university blocked the clinic from hiring him in retaliation for his discrimination complaint. The jury awarded about $436,000 in back pay and $3.1 million in compensatory damages, which the court reduced to $300,000 in accordance with Title VII’s damages cap. The university appealed.
In March 2012, the Fifth Circuit upheld the retaliation verdict but reversed the constructive discharge verdict, ruling that Nassar did not prove the existence of an aggravating factor, such as demotion or salary reduction—a requirement for constructive discharge claims. The court remanded the case for recalculation of damages because the jury’s award did not differentiate between the constructive discharge and retaliation claims. The Fifth Circuit denied the university’s petition for a rehearing.
At the Supreme Court, Washington, D.C., attorney Daryl Joseffer argued on the university’s behalf that the but-for standard should apply to Title VII retaliation claims, and the motivating factor standard should apply to the statute’s substantive discrimination claims. Justice Elena Kagan grilled Joseffer about this double standard.
“Is there any other discrimination statute in which one can say that there’s a different standard for proving retaliation than there is for proving substantive discrimination?” Kagan asked. “[I]t seems as though whatever the standard is, the standard is the same for both, and there’s no statute in which the two have been divorced.”
While Kagan and Justices Ruth Bader Ginsburg and Sonia Sotomayor appeared to side with the plaintiff, Justices Antonin Scalia and Samuel Alito, as well as Chief Justice John Roberts, seemed inclined to apply but-for causation to retaliation claims.
Dallas attorney Brian Lauten, who argued for Nassar, said that “there is nothing in the legislative history that Congress intended to create two different standards of causation for retaliation and employment discrimination.”
Assistant to the Solicitor General Arbus Sherry, who argued on the U.S. government’s behalf and agreed with the plaintiff, said that antiretaliation protections must be “robust” so that the substantive discrimination claims can be enforced.
AAJ and 17 other organizations signed on to the National Employment Lawyers Association’s amicus brief in support of Nassar. Jeffrey White, senior litigation counsel at the Center for Constitutional Litigation in Washington, D.C., said he is fearful about a ruling that extends Gross.
“Employers would like to have this but-for standard apply to substantive gender and racial discrimination claims under Title VII, so this is another step in that direction,” said White. “There are retaliation claims embedded within Title VII discrimination claims, so then you would be instructing juries on two different jury instructions. I can’t imagine what a jury would do trying to understand the instructions with two different causation standards.”
Lauten is also concerned. “It is going to be extremely confusing for juries to parse out what was a but-for cause and what was a motivating factor because that is all part and parcel of the same story,” he said. He added that a higher standard of proof would “create a chilling effect on employees who want to come forward and want to cooperate” in retaliation cases. “It would really take the teeth out of the substantive discrimination provisions in a Title VII claim too.”