UNIV. OF TX SOUTHWESTERN MEDICAL CENTER V. NASSAR: BUT FOR CAUSATION IS THE STANDARD FOR RETALIATION CLAIMS UNDER TITLE VII
Plaintiff’s lawyers will be lamenting the Supreme Court’s decision in Nassar as a stunning blow to employment retaliation suits for years to come. In a 5 to 4 decision, the Court held that unlike “status-based” discrimination (i.e. discrimination on account of sex, religion, color, race, and national origin), employer retaliation for an employee’s opposition, complaint, or effort to seek remedy for unlawful discrimination requires a showing that the adverse employment action would not have occurred “but for” the employee’s act.
The plaintiff in Univ. of TX Southwestern Med. Ctr. v. Nassar was a medical doctor of Middle Eastern descent who worked as a faculty member at the University and as a staff physician at the Parkland Memorial Hospital (“Hospital”), specializing in internal medicine and infectious diseases. Dr. Nassar was hired by the University and the Hospital in 2001. Under the terms of its affiliation agreement with the University, the Hospital was required to offer vacant staff physician posts to the University’s faculty members. In 2004, Dr. Beth Levine was hired by the University as the Chief of Infectious Disease Medicine effectively making her Dr. Nassar’s ultimate superior though not direct supervisor. On several occasions, Dr. Nassar complained to his and Dr. Levine’s direct supervisor, Dr. Gregory Fitz, the University’s Chair of Internal Medicine, about Dr. Levine’s alleged harassment on account of his religion and ethnic heritage. In 2006, Dr. Nassar obtained a promotion with Dr. Levine’s assistance. However, his complaints persisted.
Dr. Nassar ultimately decided to arrange to continue working for the Hospital without also being on the University’s faculty. To this end, Dr. Nassar resigned his post with the University after preliminary negotiations with the Hospital suggested that it might be possible for him to work for the Hospital without also working for the University. Prior to leaving his post, Dr. Nassar sent a letter to Dr. Fitz and others at the University stating that the reason for his departure was Dr. Levine’s religious, racial, and cultural bias against Arabs and Muslims. After reading the letter, Dr. Fitz made it known that he thought it was important that Dr. Levin be publicly exonerated. Meanwhile, despite its affiliation agreement with the University, the Hospital offered Dr. Nassar a job as a staff physician. Upon Dr. Fitz’s protests that the Hospital’s offer was inconsistent with its affiliation agreement, the Hospital withdrew its offer.
Dr. Nassar filed suit alleging status-based discrimination and retaliation under Title VII. His status-based claims were predicated on Dr. Levine’s alleged racially and religiously motivated discrimination which resulted in plaintiff’s constructive discharge from the University. The retaliation claim was that Dr. Fitz’s efforts to prevent the Hospital from hiring him were in retaliation for complaining about Dr. Levine’s harassment. The jury returned a verdict for Dr. Nassar on both counts. On appeal, the Fifth Circuit vacated the status-based discrimination finding and affirmed the retaliation finding on the theory that retaliation claims, like claims of status-based discrimination, require only a showing that retaliation was a motivating factor for the adverse employment action rather than its but-for cause. The Supreme Court granted cert to decide the question of whether the lessened causation standard of status-based discrimination is applicable to claims of unlawful employer retaliation under Title VII.
The answer, according to SCOTUS, is no. The Court decided that the default rule presumed to have been incorporated into Title VII (unless there is an indication to the contrary in the statute itself) is that plaintiffs must show “that the harm would not have occurred in the absence of – that is, but for – the defendant’s conduct.” Integral to the Court’s holding is the fact that status-based discrimination was specifically addressed by Congress in its 1991 amendment of the Civil Rights Act. The new subsection 2000e-2(m) states that “an unlawful employment practice is established 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.” Under this rubric, a plaintiff need only show that the defendant’s employment decision was in some way motivated by an impermissible reason rather than that the impermissible reason was the only reason the defendant took the action. The defendant’s success in demonstrating that it would have made the same decision regardless of the impermissible reason only allows relief from monetary damages and a reinstatement order; declaratory relief, attorneys’ fees, and some form of injunctive relief would still be available to the plaintiff.
However, the same cannot be said for the section of Title VII dealing with anti-retaliation. There, the Court held, Congress’ intent to lessen the standard of proof is not present. The anti-retaliation language is in a separate section of the statute apart from the status-based classifications and makes it unlawful for an employer to take an adverse employment action against an employee because of certain criteria. According to the Court, if Congress intended for the anti-retaliation portion of the statute to be dealt with as status-based claims, it could have easily made its intentions known. Furthermore, the Court held, “lessening the causation standard could also contribute to the filing of frivolous claims, siphoning resources from efforts by employers, agencies, and courts to combat workplace harassment.” Lastly, the Court found unpersuasive the argument that Dr. Nassar’s view is consistent with the EEOC’s views expressed in its manual because the manual’s explanations for its views lack the persuasive force necessary to grant it deference. Thus, the good news for employers defending Title VII retaliation claims is that such claims must be proved according to traditional principles of but-for causation, not the lessened causation test of “a motivating factor.”