When the U.S. Supreme Court changed the standard for proving retaliation cases back in 2013, there was some speculation as to whether the standard would result in different decisions.

Before the court’s decision, employees who claimed they were retaliated against, needed to show only that the retaliatory motive was a “substantial or motivating fact” affecting their termination.  The Supreme Court ruled in University of Texas Southwestern Medical Center v. Nassar heightened that standard, requiring employees to show that an employer would not have taken an adverse employment action “but for” a retaliatory motive.

When that decision was released I said, “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. “

Now we have proof.  And it actually follows from a case I first reported on about 18 months ago.

In Cassotto v. Donahoe, the Second Circuit last week affirmed a jury verdict on favor of the employer.  In the same case using the older standard, a jury had first found in favor of the employee in a termination case.  But while the case was pending a motion for new trial, the Supreme Court issued its decision.  The District Court then granted the employer’s request for a new trial; the employer won that second trial.

In its decision, the Second Circuit said that the District Court did not abuse its discretion in granting a new trial.

Considering [the employee’s] purely circumstantial evidence of retaliation and the defendant’s evidence suggesting a legitimate alternate explanation for his termination, we cannot say that the district court abused its discretion by concluding that the incorrect instruction on causation might have affected the verdict, that a correct instruction conveying a heightened standard might have led to a different verdict, and that a new trial was therefore warranted.

With a bit of humor, the Court adds a kicker in a footnote: “Indeed, at the second trial, the properly instructed jury returned a verdict for defendant, resulting in the judgment now under review.”  In other words, the District Court didn’t err because its self-evident that the new standard made a difference in the outcome.

For employers, the decision is an important reminder when discussing settlement or considering a motion, that the new standard for retaliation cases does have some teeth to it.  It should impact the value of cases and this case is a good example of that.

And while we haven’t yet seen a big dropoff yet in retaliation cases filed at the EEOC (much of the data has yet to be released), the long-term impact of the Supreme Court’s decision is only beginning to be realized.

Cassotto v. Donahoe