In another big win for employers today, the Supreme Court ruled that Title VII retaliation cases must be proved by a “but for” standard of proof, not a lower standard that had been used in various courts before.
At issue in the University of Texas Southwestern Medical Center v. Nassar case is the following question (as summarized by SCOTUSBlog) :
Whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).
The Court’s decision was again 5-4, and is important because it rejects the lower standard of proof of “a motivating factor”.
You can download the decision here. Justice Kennedy wrote for the majority.
The court is quick to note that the higher standard may stop the growing number of retaliation cases that have been filed.
The proper interpretation and implementation of §2000e–3(a) and its causation standard have central importance to the fair and responsible allocation of resources in the judicial and litigation systems. This is of particular significance because claims of retaliation are being made with ever-increasing frequency. The number of these claims filed with the Equal Employment Opportunity Commission (EEOC) has nearly doubled in the past 15 years—from just over 16,000 in 1997 to over 31,000 in 2012. … Indeed, the number of retaliation claims filed with the EEOC has now outstripped those for every type of status-based discrimination except race.
In addition lessening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment. Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation. If respondent were to prevail in his argument here, that claim could be established by a lessened causation standard, all in order to prevent the undesired change in employment circumstances. Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage.
Combined with the Vance decision this morning as well, these cases will have a significant impact on Title VII cases in this country. It will be tougher to establish a retaliation claim when you have to show that the termination wouldn’t have happened “but for” the retaliatory motive.