Workers alleging retaliation must meet higher burden

Workers who allege that their employer retaliated against them must meet a higher burden than merely showing that the desire to retaliate was one motivating factor, the U.S. Supreme Court ruled in a 5-4 decision that vacates a $3.4 million jury verdict.

“Title VII retaliation claims must be proved according to traditional principles of ‘but for’ causation, not the lessened causation test stated in [the statute],” the court held in UT Southwestern v. Nassar.

The employee, Dr. Naiel Nassar, claimed his supervisor discriminated against him on the basis of his Arab ethnicity and Muslim religion by claiming he was not working hard enough and stating that “Middle Easterners are lazy.” He resigned in a letter that complained about the supervisor, and his job offer at the hospital’s clinic was rescinded. He sued for constructive discharge and retaliation under Title VII.

A jury found for Nassar on his job discrimination claims as well as his mixed-motive retaliation claim, determining that retaliation was a motivating factor despite the hospital’s claim that he was not qualified for the clinic job.

The 5th U.S. Circuit Court of Appeals agreed that retaliation claims under Title VII require only a showing that retaliation was a motivating factor, not that the harm would not have occurred but-for the retaliation.

But the Supreme Court disagreed, applying a higher standard to retaliation claims than discrimination claims based on the employee’s status.

“Title VII’s antiretaliation provision, which is set forth in §2000e-3(a), appears in a different section from Title VII’s ban on status-based discrimination,” Justice Anthony M. Kennedy wrote for the majority.

“As actually written, … the text of the motivating-factor provision, while it begins by referring to ‘unlawful employment practices,’ then proceeds to address only five of the seven prohibited discriminatory actions — actions based on the employee’s status, i.e. race, color, religion, sex and national origin. This indicates Congress’ intent to confine [the motivating-factor] provision’s coverage to only those types of employment practices. The text … says nothing about retaliation claims,” Kennedy added.

The majority noted that retaliation claims are “being made with ever-increasing frequency” and “lessening the causation standard could also contribute to the filing of frivolous claims.”

Four dissenters complained that the majority creates a confusing dual standard for juries even though “retaliation for complaining about discrimination is tightly bonded to the core prohibition and cannot be disassociated from it.”