In University of Texas Southwestern Medical Center v. Nassar, 2013 WL 3155234 (June 24, 2013), the Supreme Court held that a Title VII retaliation plaintiff must satisfy a “but for” causation standard rather than the lower “motivating factor” standard that applies to most Title VII cases. The decision represents a clear victory for employers.
Title VII of the Civil Rights Act of 1964 includes two sections that prohibited unlawful discrimination. After the 1991 amendments, Section 2000e-2 provided that a plaintiff could prevail by proving that race, color, religion, sex or national origin was “a motivating factor” for some adverse employment action. Section 2000e-3(a), on the other hand, made it unlawful to retaliate “because of” protected conduct.” Whether these were substantively different standards was a question that caused considerable disagreement among the federal courts.
The debate was further complicated when, in 2009, the Supreme Court resolved the same issue under the Age Discrimination in Employment Act of 1967in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). In Gross, the Supreme Court interpreted the “because of” phrase to mean that age must be a “but for” cause of an adverse employment action: a higher level of proof for a plaintiff than the more general “motivating factor” standard.
Based on the holding in Gross, and the argument that Congress knew what it was doing in 1991 when it allowed the two sections of Title VII to contain differing standards, the Nassar Court similarly interpreted the “because of” language in Title VII to mean “but for,” thus making future retaliation cases under Title VII more difficult to prove than a discrimination case based on any of the Title VII statuses.
The distinction between these two standards of proof is a subtle, but important, one. In the Nassar opinion, the Supreme Court noted that Title VII retaliation cases are being made with “increased frequency,” a fact that many employers know by their own experience. In setting the standard higher, the Court attempted to avoid the filing of frivolous claims and better allocate judicial resources.
Employers will benefit from this new standard of proof because it will be more difficult for employees to prove a claim of harassment. To further protect themselves, employers should ensure that their policies call for formally reporting any act of discrimination, harassment or retaliation.