Contributed by Michael Hughes and Michael Wong
On June 24, 2013, the Supreme Court issued its decision in University of Texas Southwestern Medical Center v. Nassar. In its decision the Supreme Court clarified that employees must prove Title VII retaliation claims under the “but-for” causation standard of proof, not the lesser “motivating factor” causation test for discrimination claims. Under the “but-for” test, an employee is required to prove that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer. The Court based its decision on its finding that neither the language of Title VII as initially enacted, nor as amended by the Civil Rights Act of 1991, provided for the use of the lesser motivating-factor test. The Court found that because the 1991 Act specifically amended that portion of Title VII dealing with discrimination claims to codify the use of the motivating-factor test, but did not also amend the Title VII provisions dealing with retaliation claims, that the plain language of the statute did not allow anything less than the “but-for” test for establishing causation.
The Supreme Court also rejected the longstanding EEOC agency position that an employee should be able to prove unlawful retaliation by demonstrating that the alleged retaliatory motive of the employer was simply one motivating factor—out of possibly many other legitimate and lawful motivating factors—for the challenged employment decision. The Supreme Court recognized that the number of retaliation claims filed with the EEOC had nearly doubled in the past 15 years from just over 16,000 in 1997 to over 31,000 in 2012. The Supreme Court expressed that it had no intention in opening the flood gates to allow more frivolous retaliation claims by adopting the lesser “motivating factor” causation test. Instead by adopting the “but-for” test (the normal causation test in the absence of statutory enactment of a different standard) the Supreme Court is attempting to deter and lessen the number of frivolous retaliation claims that employers will have to face in the coming years.
When faced with a Title VII retaliation claim, employers can now argue in confidence that the employee has the burden of proving that even if the employee had not engaged in the alleged protected activity (i.e., a prior complaint of discrimination or harassment), the employee would have been subject to the same adverse action. The “but-for” causation standard combined with a strong practice of documenting and recording the legitimate and lawful reasons for taking any unfavorable or adverse employment actions against an employee will provide employers with significantly more protection against Title VII retaliation claims.