On June 24, 2013, the Supreme Court of the United States held that Title VII retaliation claims require a plaintiff to prove the more stringent "but for" causation standard, rather than the lesser "motivating factor" standard. This decision overturned the law in some circuits and clarified it in others, but will likely lead to fewer Title VII retaliation claims nationally, and enable employers to more easily defeat these claims with summary judgment motions.
Facts and Findings
In the opinion delivered by Justice Kennedy, the Court in University of Texas Southwestern Medical Center v. Nassar held that although Title VII discrimination cases require only that the plaintiff prove that the discriminatory motive was a motivating factor in an employment decision, Title VII retaliation claims require that the plaintiff prove "but for" causation. In other words, prove that the employment action would not have occurred in the absence of the employer's retaliatory motivation.
The Court had previously addressed the question of which causation standard to use in discrimination cases in Price Waterhouse v. Hopkins, finding in favor of the motivating factor standard. This standard was codified only two years later when the legislature amended the discrimination statute to explicitly require the motivating factor standard. The Supreme Court had not yet, however, looked at the causation standard for Title VII retaliation claims.
First, the Court found that the plain language of the retaliation statute pointed to the "default" "but for" standard in the absence of a specific legislative indication otherwise. Moreover, the Court found it persuasive that Congress amended the language regarding discrimination, but it did not amend the language of the retaliation provisions. The Court interpreted this as an intentional differentiation of the discrimination and retaliation standards, since it could have chosen to amend the retaliation language as well.
The Court also relied on the previous decision in Gross v. FBL Financial Services, Inc., interpreting the similar language of the Age Discrimination in Employment Act for guidance. In that case, the Court held that the prohibition against taking employment actions "because of" age meant that age must be the reason – meaning the "but for" cause – of the adverse employment action for an employer to have violated the statute. For the same reason, the Court here found that the Title VII retaliation provision, which also prohibits employment actions "because of" an employee's protected activity, also requires the "but for" standard.
Finally, the Court noted that, as a practical matter, a lessened causation standard would lead to frivolous claims. This, along with the statutory language, led the Court to hold that plaintiffs must prove "that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer," or "but for" causation.
Bottom Line
This decision overturned the previous use of the lesser motivating factor standard in some jurisdictions, like the Fifth Circuit (covering Mississippi, Texas and Louisiana), while clarifying the standard in other jurisdictions where it was previously unclear, like the Sixth Circuit (covering Tennessee, Kentucky, Ohio and Michigan). But across the board, the opinion displays the Court's understanding of Title VII's intent to protect the legitimate business decisions of the employer while protecting employees against illegal actions.
Yet, even in light of the more employer-friendly standard, the decision highlights the importance of documenting the reasons for all employment decisions. Proper training to identify protected activity under Title VII and potential situations that can lead to allegations of retaliation, and proper investigation and documentation procedures can make all the difference in defending and, hopefully, avoiding retaliation claims.
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