Supreme Court: But-for Causation Test Applies to Employees Alleging Title VII Retaliation, Not the Lessened Causation Test | Practical Law

Supreme Court: But-for Causation Test Applies to Employees Alleging Title VII Retaliation, Not the Lessened Causation Test | Practical Law

In University of Texas Southwestern Medical Center v. Nassar, the US Supreme Court held in a 5 to 4 decision that an employee alleging Title VII of the Civil Rights Act of 1964 (Title VII) retaliation must prove that a retaliatory motive on the part of his employer was the but-for cause of the negative employment action and not just a motivating factor under the lessened causation test.

Supreme Court: But-for Causation Test Applies to Employees Alleging Title VII Retaliation, Not the Lessened Causation Test

by PLC Labor & Employment
Published on 25 Jun 2013 • USA (National/Federal)
In University of Texas Southwestern Medical Center v. Nassar, the US Supreme Court held in a 5 to 4 decision that an employee alleging Title VII of the Civil Rights Act of 1964 (Title VII) retaliation must prove that a retaliatory motive on the part of his employer was the but-for cause of the negative employment action and not just a motivating factor under the lessened causation test.
On June 24, 2013, the US Supreme Court issued an opinion in University of Texas Southwestern Medical Center v. Nassar, holding in a 5 to 4 decision that an employee alleging Title VII retaliation must prove that a retaliatory motive on the part of his employer was the but-for cause of the negative employment action, instead of just a motivating factor under the lessened causation test.

Background

The University of Texas Southwestern Medical Center (University) is affiliated with Parkland Memorial Hospital (Hospital). Under this affiliation agreement, the Hospital:
  • Permits students of the University to work in its facilities to gain clinical experience.
  • Requires the Hospital to offer empty staff physician posts to University faculty members.
The respondent in this case, Dr. Nassar, is a physician of Middle Eastern descent, who was employed both as an assistant professor at the University and as a physician at the Hospital. Dr. Beth Levine was hired in 2004 as the University's Chief of Infectious Disease Medicine. In that position, Dr. Levine became Dr. Nassar's ultimate supervisor. Dr. Nassar alleged that Dr. Levine:
  • Was biased against him because of his religion and ethnic heritage.
  • Unfairly scrutinized his billing practices and productivity.
  • Made comments such as "Middle Easterners are lazy."
Dr. Nassar complained several times about this treatment to Dr. Gregory Fitz, the University's Chair of Internal Medicine and Levine's supervisor. Eventually, Dr. Nassar, still believing Dr. Levine was biased against him, tried to arrange to continue to work for the Hospital without being on the University's faculty. After some negotiation suggested this would be possible, Dr. Nassar resigned his teaching post in July 2006. When he resigned, Dr. Nassar sent a letter to Dr. Fitz and others stating that he was resigning due to harassment by Levine stemming from "religious, racial and cultural bias against Arabs and Muslims." Dr. Fitz felt that Dr. Levine had been "publicly humiliated by th[e] letter" and felt that she deserved to be "publicly exonerated."
In the meantime, the Hospital had offered Dr. Nassar a job that did not require him to be on the University's faculty. Dr. Fitz protested that offer, stating that it went against the requirement under the affiliation agreement that physicians also be on the faculty. Consequently, the Hospital withdrew the job offer.
Dr. Nassar, after exhausting his administrative remedies, filed this Title VII suit in the US District Court for the Northern District of Texas alleging two discrete violations of Title VII:
  • A status-based discrimination claim under Section 2000e-2(a) alleging that Dr. Levine's racially and religiously motivated harassment had resulted in his constructive discharge from the University.
  • A retaliation claim under Section 2000e-3(a) alleging that Dr. Fitz's efforts to prevent the Hospital from hiring him were in retaliation for complaining about Dr. Levine's harassment.
The jury found for Dr. Nassar on both claims, awarding him more than:
  • $400,000 in backpay.
  • $3 million in compensatory damages.
The District Court later reduced the compensatory damages to $300,000.
On appeal, the US Court of Appeals for the Fifth Circuit:
  • Vacated the constructive discharge claim, holding that Dr. Nassar had submitted insufficient evidence in support.
  • Affirmed the retaliation claim, holding that retaliation claims brought under Section 2000e-3(a), like status-based discrimination claims bought under Section 2000e-2(a), only require proof that retaliation was a motivating factor for the adverse employment action rather than its but-for cause.
  • Held that the evidence supported a finding that Dr. Fitz was motivated at least in part by a retaliatory motive when he encouraged the Hospital to withdraw Dr. Nassar's job offer.
The Fifth Circuit remanded for a redetermination of damages in light of it having vacated the claim for constructive discharge. Four judges dissented, arguing that the Fifth Circuit's application of the motivating-factor standard to retaliation:
  • Was "an erroneous interpretation of Title VII and controlling case law."
  • Should be overruled en banc.
The US Supreme Court granted certiorari.

Outcome

The US Supreme Court held that Title VII retaliation claims must be proved according to traditional but-for causation, and not by the lessened causation test under Section 2000e-2(m). The traditional but-for causation test requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful actions of the employer.
In its analysis, the US Supreme Court noted that Title VII's anti-retaliation provision is contained in Section 2000e-3(a), which is a different section from Title VII's ban on status-based discrimination. The US Supreme Court quoted the relevant part of Title VII's anti-retaliation statute, and held that the statute makes it unlawful for an employer to retaliate against an employee "because of" certain criteria, and therefore that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.
The US Supreme Court went on to reject Dr. Nassar's counterargument that:
  • Retaliation is defined as an "unlawful employment practice."
  • Section 2000e-2(m) allows unlawful employment practices to be proved under a showing that race, color, religion, sex or national origin was a motivating factor for and not necessarily the but-for factor in the challenged employment action.
  • The US Supreme Court has held that "retaliation for complaining about race discrimination is 'discrimination based on race.'"
The US Supreme Court retorted that Dr. Nassar's counterargument:
  • Is "inconsistent with the provision's plain language." Specifically, the text of the motivating factor provision (lessened causation test) contained in Section 2000e-2(m) limits itself to only five of the seven discriminatory actions listed under Title VII, that is race, color, religion, sex and national origin. This indicates Congress's intent to confine the motivating factor provision only to those five discriminatory actions. The text of Section 2000e-2(m) "says nothing about retaliation claims."
  • Is "inconsistent with the design and structure of the statute as a whole." When Congress wrote the motivating-factor provision, it deliberately inserted it as a subsection to Section 2000e-2 which deals with status-based discrimination. Further, a different part of the Civil Rights Act of 1991 which was the Act that introduced the motivating factor provision, contains a clear reference to all unlawful employment actions, therefore "reinforcing the conclusion that Congress acted deliberately when it omitted retaliation claims from Section 2000e-2(m)."
  • Relied on court decisions that are not controlling. While the decisions relied on do support the idea that a broad anti-discrimination statute also bans retaliation, the cases do not support the different rule that "every reference to race, color, creed, sex or nationality in an anti-discrimination statute is to be treated as a synonym for retaliation."
In further support of its holding, the US Supreme Court explained that Congress's approach to the ADA further confirms the inapplicability of Section 2000e-2(m) because the ADA (which was enacted just one year before Title VII) shows that when Congress elected to address retaliation as part of a detailed statute, "it did so in clear textual terms."
Dr. Nassar and the government also argued that the motivating factor lessened causation standard for retaliation claims would be consistent with long-standing EEOC views as are contained in an EEOC manual. The US Supreme Court rejected that argument, stating that the manual in question is not persuasive because it does not address the specific interplay between the status-based discrimination provision, the anti-retaliation provision and the motivating factor provision.
Finally, Dr. Nassar made the argument that the standard established in Price Waterhouse v. Hopkins should control. The US Supreme Court also rejected this argument, stating that the burden-shifting framework established in Price Waterhouse was foreclosed by the amendments that the Civil Rights Act of 1991 made to Title VII, specifically by the enacting of Section 2000e-2(m) adopting the motivating factor lessened causation standard for status-based discrimination claims.
The US Supreme Court vacated the judgment of the Fifth Circuit and remanded the case for further proceedings consistent with this opinion.
Justice Ginsburg, along with Justices Breyer, Sotomayer and Kagan, dissented.

Practical Implications

This ruling from the US Supreme Court benefits employers. The decision will make it more difficult for employees to succeed with Title VII retaliation claims. An employee alleging retaliation must now prove that a retaliatory motive was the but-for cause of the negative employment action instead of just a motivating factor. The US Supreme Court stated that the old lessened causation standard would likely have contributed to the filing of frivolous claims and made it more difficult to dismiss dubious claims at the summary judgment stage.

Court Documents