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U.S. Supreme Court Holds That Title VII Retaliation Claims Utilize Principles of “But-For” Causation

On June 24, 2013, the U.S. Supreme Court held that Title VII retaliation claims require proof that an employer’s alleged desire to retaliate was the “but-for” cause of the opposed employment action. In University of Texas Southwestern Medical Center v. Nassar, the Court weighed the issue of the proper standard of causation for Title VII retaliation claims. Specifically, whether Title VII requires (1) that retaliation is a “motivating factor” for the adverse employment action or (2) the adverse action is a consequence of the intended retaliation.

Background of Title VII Causation Requirements for Status-Based Discrimination

Title VII prohibits an employer from engaging in status-based discrimination. Status-based discrimination refers to the more “well-known” protections against discrimination on the basis of personal characteristics. Title VII codifies a workplace ban on discrimination on the basis of an employee’s race, color, religion, sex, or national origin in hiring, firing, salary structure, or promotions. 42 U.S.C. § 2000e–2. In asserting a Title VII discrimination claim, the employee need only show that the discrimination “was a motivating factor for any employment practice, even though other factors also motivated the practice.” See, e.g., Price Waterhouse v. Hopkins (1989) 490 U.S. 228; see also 42 USC § 2000e–2(m).

Conversely, “but-for” causation requires the plaintiff to show that the adverse employment practice would not have occurred in the absence of discrimination.

University of Texas Southwestern Medical Center v. Nassar, (No. 12-484) (June 24, 2013)

Plaintiff, a physician of Middle Eastern descent, worked as a professor at the University of Texas Southwestern Medical Center and as a staff physician with the affiliated Parkland Memorial Hospital. During his tenure, plaintiff made complaints that his supervisor was biased against him and plaintiff subsequently resigned due to the alleged “religious, racial, and cultural bias against Arabs and Muslims.” Plaintiff filed a Title VII cause of action for retaliation and status-based discrimination, under a constructive termination theory. Applying the “motivating factor” causation standard for plaintiff’s discrimination and retaliation claims, the jury found in favor of plaintiff on both counts. The Court of Appeals for the Fifth Circuit affirmed plaintiff’s retaliation claim but vacated the jury’s decision for plaintiff’s discrimination cause of action on the grounds that plaintiff did not provide enough evidence of constructive discharge.

The U.S. Supreme Court (“Court”) held that the “motivating factor” causation standard was the wrong standard to apply in an action for retaliation under Title VII. In a retaliation action, a plaintiff must establish that his or her protected activity was a “but-for” cause of the employer’s adverse action.

In reaching this decision the Court looked to its analysis of the Age Discrimination in Employment Act (“ADEA”), as the ADEA employs language similar to U.S. Code section 2000e–3(a) for retaliation under Title VII. Gross v. FBL Financial Services, Inc. (2009) 557 U.S. 167, 176. The ADEA applies a causation standard different from the “motivating factor” standard applied to status-based discrimination claims under Title VII. The ADEA provides that it “shall be unlawful for an employer . . . that age was the ‘reason’ that the employer decided to act, or, in other words, that ‘age was the ‘but-for’ cause of the employer’s adverse decision.” (internal citations omitted). Gross v. FBL Financial Services, Inc. (2009) 557 U.S. 167, 176. Therefore, the phrase “because of” means that an employee must show that the unlawful employer conduct was the but-for cause of the adverse employment action. Gross v. FBL Financial Services, Inc. (2009) 557 U.S. 167, 176; see also 29 U.S.C. § 623.

Title VII’s anti-retaliation provision uses language similar to the ADEA. U.S. Code section 2000e–3(a), establishes that it is unlawful for employers to retaliate against an employee because the employee engaged in a protected activity. As such, when bringing a cause of action under this provision an employee must show that the injury would not have occurred “but for” the unlawful act.

The Court identified a significant difference between the causation elements for status-based discrimination and retaliation claims brought under Title VII.  An employee has a lessened causation requirement when alleging status-based discrimination on account of an employee’s personal characteristics, such as race, color, religion, sex, or national origin, as the discriminatory conduct only needs to be a “motivating factor” for the adverse employment action.  Alternatively, an employee bringing a retaliation claim under Title VII must prove that the alleged retaliation resulted directly from the employee engaging in protected activity.

Differing Standard Under California FEHA

The California Fair Employment and Housing Act (“FEHA”), California’s counterpart to Title VII, applies the “substantial motivating factor” causation standard to retaliation claims. California courts define “substantial motivating factor” as a factor that a reasonable person would consider to have contributed to the adverse employment action. The “substantial motivating factor” does not have to be the only reason motivating the adverse employment action. Harris v. City of Santa Monica (2013) 56 Cal. 4th 203, 232. However, it must be more than a remote or trivial reason, mere thoughts, or passing statements unrelated to the alleged adverse employment action. Harris, 56 Cal. 4th at 232.

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