SUPREME COURT ADOPTS STRICTER TEST FOR PROVING RETALIATION IN TITLE VII CASES

The case is University of Texas Southwestern Medical Center v. Nassar, decided on June 24, 2013 [2013 U.S. LEXIS 4704]. Excuse my delay … I have been wrestling with relevant background factors to provide the best framework for describing the ruling. Please bear with me as I go through some of these factors.

The facts are that Naeil Nassar, of Middle Eastern descent, was both a physician and a university faculty member at the hospital. He claimed that one of his supervisors (Dr. Levine) harassed him based on his religion and national origin and complained to Levine’s supervisor (Dr. Fitz). Nassar arranged to continue as a physician, but resigned his faculty position. He wrote a strongly worded complaint against Levine, which Fitz saw as a public humiliation of Levine. He wanted public exoneration for Levine and arranged withdrawal of the hospital’s job offer for Nassar to continue as a physician. Nassar sued, claiming constructive discharge based on Levine’s harassment and retaliation based on Fitz’s effort to prevent his hiring. The district court found for the hospital on both charges, but the 5th Circuit overturned on the retaliation claim. The Supreme Court overturned the 5th Circuit’s retaliation in a 5-4 ruling.

As a starting point, there are three prongs to a retaliation claim: (1) engaging in a protected activity (e.g., complaining about discrimination and/or filing a formal charge); (2) experiencing a subsequent adverse action; and (3) causally connecting the adverse action to the protected activity. Nassar clearly satisfied Prongs 1 and 2. The question was did he satisfy Prong 3? The 5th Circuit favored Nassar on grounds that retaliation was a “motivating factor” for the adverse action. The Supreme Court majority (Kennedy speaking for Alito, Roberts, Scalia, and Thomas) ruled that proof of a motivating factor, is insufficient in retaliation claims. Rather, the plaintiff must prove that the retaliation is the “but for” (i.e., only) reason for the adverse action.

Here’s where you must bear with me. What this is really about is whether the rules for so-called “mixed-motive” cases also apply to retaliation cases. In Price Waterhouse v. Hopkins (1989) [490 U.S. 228], a landmark Title VII mixed-motive case, Hopkins presented irrefutable evidence that she was a victim of sex discrimination by partners who, during that timeframe, denied her promotion to partnership in back to back years. In a complex cobbled together ruling, the Supreme Court held that despite the evidence of sex discrimination against Hopkins, the employer could avoid liability by proving it would not have promoted her anyway. Ultimately, Hopkins was able to make the “but for” proof on remand, but the more important issue for mixed-motive cases it is much more difficult to make the “but for” than the “motivating factor” proof.

Bear with me just a little more now. The Hopkins ruling was one of six that Congress overturned in the Civil Rights Act of 1991 (CRA-91), striking down the “but for” logic in mixed-motive cases and replacing it with the “motivating factor” logic. Thus, the employer is liable whenever discrimination is a motivating factor in the decision, but the employer may still limit (as opposed to completely evading) liability with proof it would have made the same decision anyway.

That said, the key to the Nasser ruling is the Supreme Court’s ruling in Gross v. FBL Financial Services (2009) [557 U. S. 167], an age discrimination (or ADEA) case in which the same 5-4 majority as in the present case ruled that the language in CRA-91 applied to Title VII, but not to the ADEA (thus effectively ending 30 years of lower court mixed motive-rulings in ADEA cases). The logic used in Gross is the same as for the present ruling. The majority ruling in Gross was that ADEA statutory language uses the term “because of.” That is, the ADEA makes it illegal to discriminate “because of” age, which to the majority means age “was the ‘reason’ that the employer decided to act” (or that it is a “but for” rather than a “motivating factor” for an adverse action). The same logic was applied the present case in that it is illegal to retaliate “because of” an employee’s engagement in protected activity. In rendering it ruling, the majority rejected guidance from the EEOC Compliance Manual ß8-II(E)(1), pp. 614:0007-614:0008 (Mar. 2003) adopting the “motivating factor” logic for connecting and adverse employment action to engaging in protected activity in retaliation cases.

Justice Ginsburg (for Breyer, Kagan & Sotomayor) issued a strong dissent calling for Congress to overturn this decision, much as she recently did in the Supreme Court’s ruling in Vance v. Ball State [2013 U.S. LEXIS 4703], in which a 5-4 majority narrowed the definition of “supervisor” in harassment cases. Stay tuned.

by Art Gutman, Ph.D., Professor, Florida Institute of Technology

 

 

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