Supreme Court Adds Obstacles to Employee Retaliation Claims

Posted June 28, 2013 in Labor and Employment by

Man under boss' thumb


Workers who bring retaliation claims against their employers must show that they would not have faced any adverse employment action if not for bringing a protected civil rights complaint, the Supreme Court ruled Monday.

The employee must show that their complaint was the reason for their demotion or termination, not just one reason among others, the court decided in University of Texas Southwestern Medical Center v. Nassar.

“Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test,” Justice Anthony Kennedy wrote in the 5-4 majority opinion

At issue was a lawsuit filed by Dr. Naiel Nassar against his old employers at the University of Texas Southwestern Medical Center after a job offer at a different hospital was withdrawn. Nassar alleged that his old boss opposed his hiring at the new job because he had previously filed a discrimination claim against his former employer.

A jury awarded him $3 million, but the Medical Center appealed on the basis that the judge instructed the jury they only needed to find that the discrimination claim was a factor in the bad review, not the one determining factor.

The Supreme Court’s decision sends the case back down to lower court to make a new ruling based on the heightened standard.


But-For Causation

M. Scott McIntyre

M. Scott McIntyre

“There’s no doubt it is more difficult for plaintiffs to bring retaliation claims along with their other type claims,” says M. Scott McIntyre, a labor and employment attorney with the Cincinnati office of the firm Baker Hostetler. “The burden that the Supreme Court affirmed requires ‘but for’ causation instead of a motivating factor of causation,” as in, the employment consequence would not have occurred “but for” the original civil rights claim.

In the 2009 case Gross v. FBL Financial Services, the court ruled that age discrimination cases must also meet the but-for standard, as opposed to just a substantial factor for an adverse employment action. Claims of discrimination based on race, color, religion, sex or national origin, on the other hand, only must show that the protected feature was a motivating factor, thanks to the Civil Rights Act of 1991.

Notably, the court’s decision this week is at odds with the EEOC guidelines, which state that retaliation claims are only required to meet the lower standard. “That’s significant for the court to look at EEOC guidelines and not give them deference in that fashion,” says McIntyre.


Core Prohibitions

In reading her dissent from the bench, Justice Ruth Bader Ginsburg called for Congress to pass a law that would supersede the court’s decision.

“In so reining in retaliation claims, the Court misappre­hends what our decisions teach,” Ginsburg said in the written dissent. “Retaliation for complain­ing about discrimination is tightly bonded to the core pro­hibition and cannot be disassociated from it.”

In lieu of an act of Congress, it will be up to the courts to untangle how to apply the high court’s decision. “Employers should be in a position to make an argument to judges that some of these claims  should be dismissed earlier than before,” says McIntyre. “The plaintiffs’ bar will say no, the jury can hear both standards and make a decision.”

“Employers will file these motions to dismiss and courts will decide. We’ll have to see whether the decision has an impact at which stage of litigation,” the attorney says. “We all know it’s ‘but for’ causation, but what does ‘but for’ causation actually mean? That’s what will play out in the weeks and months to come.”

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