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Supreme Court Raises the Bar for Unlawful Retaliation Claims

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On June 24, 2013, the Supreme Court issued its decision in UTSW v. Nassar. The Court imposed a more exacting standard on employees claiming that their employer unlawfully retaliated against them because of their protected activity. Title VII of the Civil Rights Act of 1964 is the primary federal law that prohibits employment discrimination. That law provides remedies to employees for injuries related to discriminatory conduct by employers. One particular category of wrongful employer conducted prohibited by Title VII is called retaliation. Among other things, an employee bringing a retaliation claim must show that her employer retaliated against her because of her protected activity. That is, an employee must establish a sufficient link between the unlawful conduct and her injury. There are generally two theories of proving the requisite causal link. The first is but-for causation. Under that standard, an employee must show that the harm would not have occurred in the absence of – that is, but for – an employer’s conduct. The other, lesser standard requires an employee to only prove that discrimination was one of the employer’s motives for its actions, even if there were other lawful motives.

In UTSW v. Nassar, the respondent employee Dr. Naiel Nassar worked at the University of Texas, Southwestern Medical Center (UTSW). Nassar is a medical doctor and of Middle Eastern descent. UTSW hired Nassar in 1995 to work as a member of the University’s faculty and a staff physician at the Hospital. Nassar left both positions in 1998 to pursue additional medical education, returning in 2001. Dr. Beth Levine was Nassar’s supervisor. Nassar alleged that Levine discriminated against him on the basis of his religion and ethnicity. Specifically, Nassar complained that Levine unduly scrutinized his billing practices and productivity. Nassar also alleged that Levine commented “Middle Easterners are lazy.” On several occasions, Nassar met with Dr. Gregory Fitz – the University’s chair of Internal Medicine and Levine’s supervisor – to complain about Levine’s alleged harassment. Despite obtaining a promotion with Levine’s assistance in 2006, Nassar continued to believe that she was biased against him. Nassar eventually resigned from his teaching post from the University in July 2006, citing Levine’s harassment as the reason for his departure. Subsequently, the Hospital offered Nassar a staff physician position. After learning of this offer, Fitz protested to the Hospital, indicating that the agreement between the University and Hospital mandated that all staff physicians also be members of the University faculty. The Hospital then withdrew its offer.

Nassar eventually filed a lawsuit in federal district court, claiming violations of Title VII. Among other things, Nassar alleged that Fitz’s efforts to prevent the Hospital from hiring him were in retaliation for complaining about Levine’s harassment. The jury found for Nassar on all claims. On appeal, the Court of Appeals for the Fifth Circuit affirmed the retaliation finding on the theory that retaliation claims brought under § 2000e-3(a) of Title VII require only a showing that the retaliation was a motivating factor for the adverse employment action, rather that its but-for cause. The case was appealed to the Supreme Court.

The Supreme Court resolved the question of the proper standard of causation for Title VII retaliation claims, concluding that an employee must show that the desire to retaliate was the but-for cause of the challenged employment action. In so holding, the Court made clear that the “motivating factor” strand of causation applies only to status-based discrimination under § 2000e-2(m) – that is, discrimination on the basis of race, color, religion, sex, and national origin. Given the Court’s conclusion, it would be almost impossible for Nassar to show that his protected activity was the but-for cause of the University’s actions.

Significantly, the Court’s decision means that the burden-shifting framework that was established an earlier Court case, Price Waterhouse v. Hopkins, is inapplicable to retaliation claims. In practice, the higher burden of causation makes it much easier for employers to have a case dismissed at the summary judgment stage.

If you believe you have been discriminated against by your employer, you should contact a St. Louis employment lawyer. Contact Riggan Law Firm, LLC now for an initial case evaluation.

A copy of the Supreme Court’s decision can be found at this link.

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