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Tuesday, July 2, 2013

University of Texas Southwestern Medical Center v. Nassar: Supreme Court Requires "But-For" Causation In Title VII Retaliation Actions

In University of Texas Southwestern Medical Center v. Nassar, ___ U.S. ___ (6/24/13), the Supreme Court considered the plaintiff's burden of proof in a Title VII retaliation action. In an opinion written by Justice Kennedy, with Chief Justice Roberts and Justices Scalia, Thomas, and Alito joining, the Court began with the premise that "causation in fact—i.e., proof that the defendant's conduct did in fact cause the plaintiff's injury—is a standard requirement of any tort claim." 

The Court then reviewed the history of Title VII's enactment in 1964, its amendment in 1991, the cases on the proof required in Title VII discrimination and retaliation claims, and its decision in Gross v. FBL Financial Services, Inc., 557 U. S. 167 (2009), which required the plaintiff to demonstrate but-for causation in an action under the Age Discrimination in Employment Act (ADEA). 

The Court then held that Title VII's anti-retaliation provision, like the ADEA, requires proof of but-for causation: 
[Title VII] like the [ADEA], makes it unlawful for an employer to take adverse employment action against an employee "because" of certain criteria. Cf. 29 U. S. C. §623(a)(1). Given the lack of any meaningful textual difference between the text in this statute and the one in Gross, 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.  
The Court rejected the argument that the "motivating factor" standard, which applies in Title VII discrimination cases, should apply equally in Title VII retaliation cases:
It must be acknowledged that because Title VII defines "unlawful employment practice" to include retaliation, the question presented by this case would be different if §2000e-2(m) extended its coverage to all unlawful employment practices. As actually written, however, 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 that provision's coverage to only those types of employment practices. The text of §2000e-2(m) says nothing about retaliation claims. Given this clear language, it would be improper to conclude that what Congress omitted from the statute is nevertheless within its scope.
The Court then made a number of public policy arguments for adopting the more narrow but-for causation standard, including noting that retaliation claims "are being made with ever-increasing frequency" and that the lower standard "could also contribute to the filing of frivolous claims."

Finally, the Court considered the EEOC's "long-standing agency views" that the motivating-factor standard should apply. The Court held that the EEOC's views "lack the persuasive force that is a necessary precondition to deference" under Skidmore v. Swift & Co., 323 U. S. 134 (1944).  

The dissent, written by Justice Ginsburg and joined by Justices Breyer, Sotomayor, and Kagan, argues for a number of textual and public policy reasons that the Court should apply a motivating factor standard to retaliation cases. The dissent concludes: 
The Court holds, at odds with a solid line of decisions recognizing that retaliation is inextricably bound up with status-based discrimination, that §2000e-2(m) excludes retaliation claims. It then reaches outside of Title VII to arrive at an interpretation of "because" that lacks sensitivity to the realities of life at work. In this endeavor, the Court is guided neither by precedent, nor by the aims of legislators who formulated and amended Title VII. Indeed, the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers. See ante, at 18-19. Congress had no such goal in mind when it added §2000e-2(m) to Title VII. See House Report Part II, at 2. Today's misguided judgment, along with the judgment in Vance v. Ball State Univ., post,p. 1, should prompt yet another Civil Rights Restoration Act.
I think it goes without saying that Congress is not likely to pass any such legislation any time in the near future.  

University of Texas Southwestern Medical Center v. Nassar is here. The SCOTUSblog page for it is here.  

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