July 25, 2013 –
Supreme Court gives employers avenue to defend ever-increasing retaliation claims

Last year alone, 37,836 charges of discrimination were filed with the EEOC alleging unlawful retaliation under Title VII. In a 5-4 decision decided last month, the Supreme Court acknowledged this dramatic increase in retaliation claims and gave employers a reason to exhale, by establishing a strict standard of causation that employees must meet in order to state a claim of unlawful retaliation.

In Univ. of Tex. Southwestern Med. Ctr. v. Nassar, the plaintiff, Dr. Nassar, was a physician of Middle Eastern descent who was on the staff of a hospital and a member of the affiliated university’s faculty. Dr. Nassar began negotiations to resign from his faculty position after he determined that his indirect supervisor was unfairly criticizing his billing practices and productivity because she was allegedly prejudiced against his religion and ethnic heritage. Despite a prior agreement between the university and the hospital that staff physicians were required to also serve as faculty members of the university, the hospital offered Dr. Nassar the opportunity to work solely as a staff physician. In his resignation letter to the university department chair and others, Dr. Nassar stated that he was the victim of racial and ethnic harassment. The department chair viewed this resignation letter as an attempt to publicly humiliate the supervisor and convinced the hospital to withdraw the job offer. Dr. Nassar sued asserting claims for status-based discrimination and retaliation.

In Nassar, the Supreme Court considered the proper standard for causation for Title VII retaliation claims. In so doing, the Court examined the Civil Rights Act of 1991 (the “Act”) and the lessened causation standard the Act establishes for status-based discrimination claims. Under the Act, in order to establish a status-based discrimination claim, an employee only has to demonstrate that discrimination was a motivating factor in an employer’s decision-making.

The court decided the lessened causation standard established by the Act does not apply to retaliation claims because Title VII distinguishes between status-based discrimination and retaliation and the language and structure of the Act only directs the lessened causation standard to status-based discrimination. The court held that plaintiffs must prove Title VII retaliation claims through the heightened “but-for” causation standard commonly found under traditional tort principles. As such, in order for Dr. Nassar to establish a claim for retaliation, he was required to establish that his protected activity was the “but-for” cause of the adverse employment action. The fact that the protected activity was a “motivating factor” of the adverse employment action was insufficient.

The Supreme Court’s decision is great news for employers. This decision will help prevent employees who foresee they will be fired from making unfounded claims of discrimination in an effort to set up a retaliation claim. Employers should continue to document employee performance because with the heightened “but-for” standard in Nassar, employers who are able to articulate and support legitimate business reasons for termination may be able to escape liability by demonstrating that retaliation was not the “but-for” cause for the action.

If you would like to know more information about proactive steps your business can take to prepare it to defend against retaliation claims, please contact a member of Gunster’s Labor and Employment practice group at 561-655-1980.