November 01, 2013 /24-7PressRelease/
-- Proving retaliation in the workplace: U.S. Supreme Court rules for stricter "but-for" standard
This year's U.S. Supreme Court term was a tough one for employees. In Vance v. Ball State University, the Court narrowed the definition of the term "supervisor" for purposes of illegal discrimination and harassment under Title VII, thereby making it easier for employers to defend such claims. In an equally important case for workplace retaliation claims, the Court in University of Texas Southwestern Medical Center v. Nassar adopted a more stringent standard of causation or standard of proof. The Court's ruling is an interpretation of the difference between "status-based" claims and retaliation claims under Title VII and the effect the Civil Rights Act of 1991 had on the Court's prior decisions on the issue. The result is that employees who allege retaliation in the workplace must show illegal discrimination was the sole cause of the retaliatory decision rather than one substantial cause among other motivating factors, such as legitimate business reasons. Like Vance, the Nassar decision will likely make it harder for employees who suffer discrimination
and/or report that discrimination to win their claims.
Retaliation and facts of the case
Title VII protects employees from being fired, demoted or harassed when they report discrimination in the workplace to their employer, file a charge of workplace discrimination suit or participate in an employment discrimination proceeding. In Nassar the plaintiff was a doctor of Middle Eastern descent who was a faculty member at the University and an associate director at an affiliated hospital. The doctor alleged that one of his supervisors at the University discriminated against his ethnic heritage and religion by making derogatory remarks and reviewed his work more than others. He complained about the treatment to his supervisor's manager, but after experiencing further harassment afterward he resigned the teaching position and took a position with the affiliated hospital. Upon his resignation, the doctor wrote a letter to his supervisor's manager explaining he left the position because of his supervisor's harassment. Thereafter the position at the hospital was withdrawn. The doctor claimed the University retaliated against him by preventing his hiring at the affiliated hospital because he complained of the harassment to the University. The University argued it would not have hired the doctor despite the alleged retaliation.
The Court's ruling
The question before the Court was whether the plaintiff had to show that the retaliation
was merely a "motivating" or a substantial factor among others in the University's decision or that the plaintiff would have gotten the position "but for" the retaliation. To answer that question the Court looked to what standard Congress intended to use for retaliation claims under Title VII. In its explanation the Court presumed Congress would use the traditional tort standard of causation, which is "but-for," unless indicated otherwise in Title VII. Under a but-for standard, a plaintiff must demonstrate that had it not been for the illegal act, the plaintiff's injury would not have occurred.
In 1991, Congress passed legislation and provided a different definition, at least, for "status-based" discrimination, meaning discrimination on the basis of sex, race or religion. Under that standard employer liability is established when the employee demonstrates that "race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."
In Nassar, the Court ruled the "motivating factor" definition did not apply to retaliation claims and that retaliation claims must meet the higher "but-for" standard to be successful. The Court reasoned Congress did not expressly include retaliation claims to be subject to the motivating factor standard in the amending legislation, that Title VII divides status-based claims and retaliation claims statutorily and that Title VII as a whole treats retaliation claims differently than status-based discrimination. Finally, the Court explained that with "ever-increasing" retaliation claims a stricter standard of proof was more practical.
As in Vance, Justice Ginsburg, wrote the dissent. The dissent emphasized the importance of the relationship between discrimination and anti-retaliation protection and flatly rejected the idea that legislation passed to strengthen antidiscrimination in 1991 would not include strengthening anti-retaliation protection as well. By creating two different standards for two different Title VII claims, the dissent argues the ruling will only create more confusion among courts and juries. Moreover, Justice Ginsburg believes the but-for standard is inappropriate for discrimination cases because it requires juries to go into the minds of employers. Finally, the dissent claims the Court manufactured a ruling to reduce the number of retaliation claims even though Congress did not have that goal when passing the Civil Rights Act of 1991.
Since demonstrating retaliation in workplace discrimination cases may have become more difficult because of the Nassar ruling, it is more important than ever to work with a plaintiff's employment attorney if you are the target of discriminatory or retaliatory measures at work.
Article provided by McCarthy Weisberg Cummings, P.C.
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