On Monday, June 24, 2013, the Supreme Court issued a decision in University of Texas Southwestern Medical Center v. Nassar, holding that an individual claiming retaliation has the burden of proving that the retaliation was the determinative factor, not merely a motivating factor, in the adverse employment action.
Title VII prohibits two categories of wrongful employer conduct. The first category is so called status-based discrimination, which prohibits employer discrimination on the basis of race, color, religion, sex or national origin. The second category prohibits retaliation on account of an employee's having opposed, complained of, or sought remedies for unlawful workplace discrimination. In 1991, Congress amended the section of Title VII that prohibits status-based discrimination so that an employee need not show that the causal link between injury and wrong is so close that the injury would have occurred "but for" the act. Instead, an employee is only required to show that the motive to discriminate was one of the employer's motives, even if the employer had other, lawful motives that were a factor in the employer's decision.
In University of Texas Southwestern Medical Center v. Nassar, the issue was whether the lessened causation standard that Congress applied to status-based discrimination claims should also be applied to retaliation claims. Justice Kennedy, writing for the 5-4 majority held that Congress' failure to explicitly include the lessened causation standard in the section prohibiting retaliation necessitated that traditional standards of causation apply to claims of retaliation. Individuals claiming to be victims of retaliation must now show that the adverse employment action would not have occurred "but for" the desire to retaliate against the individual.
Justice Ginsberg wrote in the dissent that the Court's decision is at odds with a solid line of decisions recognizing that retaliation for complaining about discrimination is "tightly bonded to the core prohibition" of discrimination. She called on Congress to enact yet another Civil Rights Restoration Act to correct the Court's decision.
To be clear, employers are still prohibited from engaging in retaliatory conduct against an employee and an employee still may sue his or her employer for retaliation. The Tarantino Law Firm's Labor and Employment Law Practice has extensive experience representing both employers and employees in all aspects of the employment relationship. Please contact us if you are faced with any of the issues presented here.