July 5, 2013
By Adam Dauksas
Editors’ Note: On June 24, 2013, the U.S. Supreme Court handed down decisions in two employment cases that significantly affect the scope of employment discrimination law, both of which are “friendly” to employers. In our last eBlackboard, we reviewed the Court’s interpretation of who is a supervisor for purposes of imputing liability to an employer in Title VII discrimination claims. In this eBlackboard, we review the stiffer legal standard the Court announced a plaintiff must meet in order to prevail on a retaliation claim under Title VII.
Recently, the U.S. Supreme Court made it significantly harder for an employee to prove that an employer has unlawfully retaliated against him/her for having previously opposed, complained of, or sought remedies for, unlawful workplace discrimination. The Court, in University of Texas Southwestern Medical Center v. Nassar, held that when pleading a retaliation claim, an employee must show that an employer’s desire to retaliate was not just a motivating factor for any adverse employment action, but was that action’s “but-for” cause.
Dr. Naiel Nassar was a medical doctor of Middle Eastern descent who worked as both an assistant professor at the University of Texas Southwestern Medical Center and a physician at Parkland Memorial Hospital. The university and hospital had an affiliation agreement, whereby the hospital would offer empty staff physician posts to university faculty members such as Dr. Nassar. Dr. Nassar’s immediate superior at the university was Dr. Beth Levine. Dr. Nassar alleged that Dr. Levine was biased against him because of his religion and ethnic heritage, and, on several occasions, Dr. Nassar met with Dr. Gregory Fitz, who was Dr. Levine’s supervisor, to complain about her alleged harassment. Believing Dr. Levine was prejudiced towards him, Dr. Nassar tried to arrange to continue working at the hospital without also being on the university’s faculty.
As Dr. Nassar negotiated with the hospital regarding his new position, he resigned from his teaching job with the university and sent a letter to Dr. Fitz and several others, in which Dr. Nassar stated that he was leaving because of Dr. Levine’s harassment. In particular, Dr. Nassar stated that Dr. Levine’s harassment “stems from .. . religious, racial and cultural bias against Arabs and Muslims.” Upset at Dr. Nassar’s portrayal of Dr. Levine, and concerned that the affiliation agreement prohibited Dr. Nassar from working at the hospital without also working at the university, Dr. Fitz protested to the hospital. As a result, the hospital withdrew its job offer.
Dr. Nassar then filed a lawsuit against the university, alleging two separate violations of Title VII of the Civil Rights Act of 1964. The first claim was for status-based discrimination, contending Dr. Levine’s racial and religious harassment had caused Dr. Nassar’s constructive discharge from the university. The second claim was for retaliation, asserting that Dr. Fitz’s efforts to stop the hospital from hiring him were in retaliation for Dr. Nassar having complained about Dr. Levine’s harassment. The issue before the Supreme Court was whether the same legal standard related to causation applied to both claims.
With respect to status-based discrimination claims, which encompass discrimination on the basis of race, color, religion, sex, and national origin, the Court has long held that an employee need only demonstrate that one of those protected bases was a motivating factor in the adverse employment action. This means that an employer can be held liable for status-based discrimination even though other non-prohibited factors (e.g. job performance, attendance, etc.) also prompted the adverse employment action. Before the Supreme Court, Nassar argued that this standard should also apply to retaliation claims.
But the Supreme Court disagreed. Noting that the number of retaliation claims filed with the U.S. Equal Employment Opportunity Commission (“EEOC”) “has nearly doubled in the past 15 years – from just over 16,000 in 1997 to over 31,000 in 2012,” the Court determined that a more stringent standard was warranted. Thus, to prevail on a claim of retaliation under Title VII, an employee must now prove that their employer’s desire to retaliate was the “but-for” cause of the disputed employment action. This means that the alleged unlawful retaliation would not have occurred in the absence of the employer’s desire to retaliate.
This heightened causation standard is welcome news for employers, including school districts. If a “motivating factor” standard were to instead be applied to employees’ retaliation claims under Title VII, frivolous claims would stand a much better chance of succeeding. For example, if a probationary teacher was about to be non- renewed for legitimate, performance-based reasons, he/she could simply level a bogus charge of racial, sexual, or religious discrimination. Then, once the non-renewal occurs, the teacher could allege that the school district had retaliated against him/her because of the previously-asserted discrimination charge. Under a “but-for” cause standard, however, such a retaliation claim would almost certainly fail as the non-renewal would have occurred regardless of the teacher’s discrimination charge.
If you have any questions regarding this decision or how it may impact a case that your school district currently has pending, please do not hesitate to contact Scariano, Himes and Petrarca, Chtd.