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The impact of the US Supreme Court ruling on employment law
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In this article, we examine a recent ruling of the U.S. Supreme Court that relates to clarification of the law concerning the discharge of an employee, when that employee believes the discharge was, at least in part, because of discrimination by the employer. The relevant case is that of University of Texas Southwestern Medical Center v. Naiel Nassar, and the ruling was issued by the Supreme Court in June 2013.
Antidiscrimination statutes
Eradicating unlawful discrimination and retaliation in the workplace was a primary purpose of Title VII of the U.S. Civil Rights Act of 1964. Title VII makes it illegal for employers to discriminate against employees on the basis of race, color, religion, sex or national origin. It also prohibits retaliation against employees who report or otherwise complain about wrongdoing under the act.
Subsequent Supreme Court rulings had the effect of limiting the rights of employees who had sued their employers for discrimination. In response, Congress passed the Civil Rights Act of 1991, which reflected the first effort to modify some of the basic procedural and substantive rights provided by the Civil Rights Act of 1964. Under the 1991 amendment, for example, defendants had the right to a jury trial on discrimination claims. Emotional distress damages were introduced, while limiting the size of jury awards.
B. Sonny Bal
Lawrence H. Brenner
One relevant amendment provided that Title VII is violated “when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” Thus, under the 1991 amendment, even if the employer can prove it would have taken the same action anyway, it is still liable, but it is not required to pay damages, although it is still subject to declaratory and injunctive relief, and attorney’s fees. This expanded interpretation made it easier for defendants to prove that discrimination was a part of the reason, although not the sole reason, that they were discharged from their jobs.
Pertinent legal case history
Price Waterhouse v. Hopkins was a 1989 ruling by the Supreme Court in which a plurality of judges had held that the discrimination provision of Title VII requires a plaintiff to prove only that discrimination was “a motivating factor” for an adverse employment action. In that case, plaintiff Ann Hopkins had claimed she was denied promotion to partnership at the firm based on gender stereotyping; some reported that her attitude was the cause, whereas her employer allegedly wanted her to conduct herself in a more feminine manner.
In 2009, Jack Gross argued that his employer had demoted him because of his age; the legal case of Gross v. FBL Financial Services led to a split 5-4 decision where the Supreme Court demanded proof that age was “the but for cause” of an adverse employment action, such that the defendant employer would not be liable if it had demoted Gross for other, non-discriminatory reasons.
Since these two rulings, the U.S. Court of Appeals was divided 3-2 as to which opinion set forth the legal precedent for other federal employment statutes, such as Title VII’s retaliation provision, that do not specifically authorize mixed-motive claims. In the case of Nassar , the Supreme Court would address this split opinion, and clarify the general rule.
Nassar and University of Texas
Seeking a different supervisor, Nassar complained to Levine’s chief, and was told that Parkland could only fill physician positions with faculty from the university medical center. Recognizing that there were some physicians at Parkland who did not hold a faculty position at the university, Parkland offered to hire Nassar directly, if he resigned from the university. In his resignation letter, Nassar cited Levine’s conduct, harassment, and discrimination as his reasons for resigning.
The district court found for Nassar on two counts, awarding him more than $400,000 in back pay, and more than $3 million in compensatory damages. On appeal, the Fifth Circuit affirmed in part, and vacated the ruling below in part; this division of the lower courts on a federal question led to the Supreme Court granting discretionary review of the conflict.
Issues before the Supreme Court
The Nassar case essentially asked the Supreme Court to clarify which of three standards of proof apply to retaliation claims under Title VII. Specifically, the Supreme Court had to decide whether a plaintiff must prove that retaliation was:
- the “but for” cause of his/her termination (or other adverse employment action). This was the standard the Supreme Court had used for discrimination claims under the Age Discrimination in Employment Act (ADEA) in Gross ;
- simply a “motivating factor” in the employment decision, a lesser standard of proof Congress adopted for race and sex discrimination claims under the 1991 amendment specific to Title VII; or
- a “motivating factor” under a similar test the Supreme Court had applied to race and sex discrimination claims, prior to the enactment of the 1991 amendment, in its split decision in Price Waterhouse .
The precise question before the Supreme Court was whether Title VII's retaliation provision 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). Legal scholars who followed this litigation had observed that a holding in favor of the university would make it difficult for victims of retaliation to sue their employers under Title VII, whereas a holding in favor of Nassar would increase the costs borne by employers in defending against potentially meritless litigation.
For its part, the university argued that Nassar would not have been hired in any event since the medical center required all physicians be members of the university faculty, a not uncommon arrangement at many academic medical centers. To prevail under the Title VII statute, Nassar had to show that retaliation was the sole motivating factor for the negative employment action. In other words, the university contended that Nassar could not show, as required under the law, that “but for” the retaliation that he alleged, he would have landed the job at the medical center.
The university argued that the precedent of Gross applied equally to Title VII retaliation claims, i.e., when a statute provides a remedy for injuries caused by “reason” of unlawful conduct (as Title VII does), then courts should read Congressional intent as invoking the long tradition of requiring plaintiffs to prove that the defendant employer’s illegal acts were the “but for” cause of the plaintiff’s damages.
The university also argued that the Supreme Court’s adoption of a mixed-motive standard for sex discrimination claims in Price Waterhouse did not apply to the present case. The 1991 amendment had validated the essence of the Price Waterhouse ruling, but limited it to claims of “race, color, religion, sex or national origin” discrimination, with no reference to retaliation claims. Accordingly, the 1991 amendment’s “mixed motive” provision should not apply to retaliation claims. Furthermore, the university said Congressional intent was to incorporate Price Waterhouse only for substantive discrimination claims, meaning that retaliation claims should continue to be governed by the general background “but for” rule, rather than the 1991 amendment, or the Price Waterhouse decision.
Nassar countered that he was required to show that retaliation was only a motivating factor, and not the only factor, for his not getting the job. He acknowledged that the 1991 “mixed motive” provision applied only to claims of “race, color, religion, sex or national origin” discrimination. But, Nassar argued that the provision should apply to his retaliation claim as well because, in interpreting various antidiscrimination statutes (such as Title IX which prohibits sex discrimination in federally funded education programs, or the federal-sector provisions of the ADEA, which prohibits age discrimination in federal employment), the Supreme Court had made it clear that the prohibition against sex or age discrimination implicitly prohibits retaliation as well, since retaliation itself is a form of sex or age discrimination. Thus, Nassar took the view that his retaliation claim fell squarely in the language of the 1991 mixed-motive amendment.
In the alternative, Nassar also argued that his Title VII retaliation claim was governed by the Price Waterhouse decision. Before 1991, the lower courts had applied Price Waterhouse’s mixed-motive standard to all Title VII claims, including retaliation claims. Since Congress had said nothing about retaliation claims in the 1991 amendments, the pre-existing background mixed-motive rule should apply.
The United States filed an amicus brief supporting Nassar — specifically, his first argument focused on the 1991 amendments. Several university associations and professional groups also filed amicus briefs supporting the University of Texas.
Outcome
By a 5-4 split decision with the liberal judges in the minority, the Supreme Court reversed the Fifth Circuit Court’s decision and held that Title VII retaliation claims are governed by the “but for” standard of causation rather than the less burdensome “motivating factor” standard. Relying on the plain language of Title VII, the Supreme Court said the statute specifically states that unlawful employment practices based on race, color, religion, sex and national origin could be proved based on the “motivating factor” standard, and that this language clearly did not include retaliation.
The Supreme Court focused also on the language of Title VII’s anti-retaliation provision, which “makes it unlawful for an employer to take adverse employment action ‘because of’ certain criteria.” The 2009 case of Gross had involved similar “because of” language, and the Supreme Court had held that a plaintiff suing under the federal ADEA must prove that age was the but for cause of the adverse employment action. According to the Supreme Court, the “because of” language in the retaliation statute mandated the same result in Nassar . Therefore, the stricter but for standard of proof should apply for defendants in a Title VII retaliation case, whereas the less strict “motivating factor” standard would still guide Title VII claims based on race, color, religion, sex, and national origin.
The Supreme Court reasoned that retaliation claims are made with “ever-increasing frequency” and that lessening the standard could contribute to the filing of frivolous claims. The Supreme Court’s decision is a clear victory for employers. The “but for” standard of proof is considerably more difficult for plaintiffs to achieve and will serve to aid employers in defending Title VII retaliation claims, unless Congress passes or amends legislation to the contrary. We will look out for any future legal ruling by the Supreme Court that tilts the scales back in favor of employees.
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Disclosures: Bal and Brenner have no relevant financial disclosures.