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The United States Supreme Court holds that a mixed-motive jury instruction in a Title VII retaliation case is improper.

October 18, 2013
University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (6/24/13)

The United States Supreme Court held that a plaintiff bringing a retaliation claim under Title VII must demonstrate “that the desire to retaliate was the but-for cause of the challenged employment action” and further noted that a “mixed-motive” jury instruction in a Title VII retaliation case is not proper. In this case, the plaintiff filed suit, alleging constructive discharge and retaliation after he complained about his supervisor’s alleged bias toward him on the basis of his religion and ethnic heritage. At trial, the jury returned a verdict in favor of the plaintiff on both of his claims. On appeal, the Fifth Circuit vacated the jury’s verdict on the constructive discharge claim but upheld the verdict on the retaliation claim, finding that retaliation claims—like status-based discrimination claims under Title VII—require only a showing that retaliation was a motivating factor for the adverse employment action, rather than its but-for cause.

The Supreme Court, however, reversed this decision and found that the plain language of Title VII’s anti-retaliation provision, which makes it unlawful for an employer to take adverse employment action against an employee “because” of certain criteria, mandates that “the proper conclusion here, as in Gross, is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.” In so holding, the Court reasoned that, unlike Title VII status discrimination claims—which were amended by Congress to explicitly authorize discrimination claims in which an improper consideration was a motivating factor for an adverse employment decision—Congress did not amend the anti-retaliation provision of Title VII and there is a lack of any meaningful textual difference between the text of Title VII’s anti-retaliation provision and the Age Discrimination in Employment Act, which was at issue in the Supreme Court’s 2009 decision in Gross. The Court further reasoned that “lessening the causation standard could contribute to the filing of frivolous claims,” which would permit an employee who knew that he or she was about to be fired for poor performance to forestall a lawful action by making a complaint of discrimination. Indeed, the Court noted that “[e]ven if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage.”

Accordingly, with this decision, employers will have an easier time defending Title VII retaliation claims, as the employee will now have the ultimate burden of establishing that the retaliatory motive was “the reason” or the “but-for” cause of the employment decision.

Case Law Alert, 4th Quarter 2013

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Lee C. Durivage
(215) 575-2584

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