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Monday, January 28, 2013

University of Texas Southwestern Medical Center v. Nassar: SCOTUS to Consider "But For" and "Mixed Motive" Causation in Title VII Retaliation Action

In Nassar v. University of Texas Southwestern Medical Center, 674 F.3d 448 (5th Cir., 2012) (available here), the Fifth Circuit Court of Appeals held that the plaintiff in a Title VII retaliation action need not prove that discriminatory animus was the sole cause of an adverse employment action, but could prevail on evidence that his race was "a motivating factor."  

The Supreme Court of the United States granted certiorari on January 18, 2013, sub nom University of Texas Southwestern Medical Center v. Nassar (Case No. 12-484).  The petitioner framed the issue as follows in its petition for review:  
Whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).  
The Court has not yet set oral argument.  I assume it will hear Nassar in April.  The Supreme Court's web page for the case is here, and SCOTUSblog has a page here.  

Nassar of course brings to mind the pending California Supreme Court case of Harris v. City of Santa Monica.  Like Harris, I have added Nassar to our Watch List, and we (the State Bar of California Labor and Employment Law Section) will present a webinar on it within two weeks of the decision being issued.  

As always, stay tuned.  

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