Supreme Court Holds But-For Causation Standard Applies to Retaliation Claims Under Title VII - Articles

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Posted by: Christy Gibson on Jul 23, 2013

By J. Gregory Grisham*

The United States Supreme Court in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. __, 133 S. Ct. 2517, 186 L. Ed. 2d 501, 2013 U.S. LEXIS 4704(2013),[i] addressed the question of what causation standard should apply to retaliation claims under Title VII of the Civil Rights Act.

The Defendant, University of Texas Southwestern Medical Center (“UTSMC”), is an academic institution specializing in medical education.[ii] UTSMC had an affiliation agreement with Parkland Memorial Hospital (“Parkland”), under which its medical students could work at Parkland’s facilities to gain clinical experience.[iii] In addition, the affiliation agreement required Parkland to offer vacant staff physician positions to UTSMC faculty members.[iv] Most of the staff physician positions were in fact filled by UTSMC faculty members.[v]

The Plaintiff, Dr. Naiel Nassar (“Nassar”), is a medical doctor of Middle Eastern descent.[vi] He was hired in 1995 to work on the faculty of UTSMC and as a staff physician at Parkland.[vii] Nassar left his posts at UTSMC and Parkland in 1998, but returned to work in 2001.[viii] In 2004, Dr. Beth Levine (“Levine”) became Nassar’s ultimate supervisor.[ix] Nassar alleged in his lawsuit that Levine was biased against him because of his ethnicity and religion and made negative comments, such as “Middle Easterners are lazy.”[x] Nassar further alleged Levine unfairly scrutinized his billing practices and productivity.[xi] On several occasions, Nassar met with Levine’s supervisor, Dr. Gregory Fritz (“Fritz”), about the alleged harassment.[xii] Nassar was promoted in 2006 with the help of Levine, but continued to believe that Levine was biased against him.[xiii] Nassar then attempted to resign his teaching post at UTSMC while continuing to work at Parkland.[xiv] Nassar resigned his teaching position at UTSMC in July 2006 and sent a letter to Fritz explaining that he was leaving because of harassment by Levine and her bias against “Arabs and Muslims.”[xv] Fritz expressed concern at the allegations against Levine, stating that Levine had been “publicly humiliated by th[e] letter” and that it was important for Levine to “be publicly exonerated.”[xvi]

In the meantime, Parkland had offered Nassar a staff physician position.[xvii] Fritz learned of the offer and notified Parkland that the offer was counter to the affiliation agreement that all staff physicians be filled by UTSMC faculty members.[xviii] In response, Parkland withdrew the job offer made to Nassar.[xix]

After filing an administrative charge, Nassar filed a lawsuit under Title VII alleging Levine’s racial and religious harassment had resulted in his constructive discharge from the employment of UTSMC in violation of 42 U.S.C.§2000e-2(a).[xx] Nassar also brought a retaliation claim alleging Fritz’s communications with Parkland about its job offer to Nassar were in retaliation for his complaints about Levine and violated 42 U.S.C.§2000e-3(a).[xxi] The jury found for Nassar on both claims and awarded backpay and compensatory damages.[xxii] On appeal, the Fifth Circuit Court of Appeals affirmed in part and vacated in part the jury verdict.[xxiii] The Fifth Circuit vacated the verdict in favor of Nassar on his constructive discharge claim, finding that there was insufficient evidence to support the verdict.[xxiv] However, the Court of Appeals affirmed the jury verdict in favor of Nassar on the retaliation claim, finding that Nassar need only show that retaliation was a motivating factor, as opposed to the more restrictive but-for causation standard, for the adverse employment action.[xxv]

The U.S. Supreme Court accepted review to determine the proper standard of causation for Title VII retaliation claims.[xxvi] The Court began its analysis by reviewing the law governing causation as developed in tort cases.[xxvii] The Court noted this standard normally requires the plaintiff to prove “the harm would not have occurred in the absence of — that is, “but for” -— the defendant’s conduct.”[xxviii] The Court further noted that this standard is the “default” standard and it is presumed Congress incorporated this standard in enacting Title VII, absent a contrary indication in the statute itself.[xxix]

A distinction was noted by the Court between claims against “status based discrimination” under §2000e-2(a) (i.e., discrimination on the basis of race, color, national origin, religion and sex) and claims alleging retaliation based on opposition to discriminatory employment practices and complaints against discrimination under §2000e-3(a).[xxx] The Court stated Congress in enacting the Civil Rights Act of 1991 (that amended Title VII) had codified the “motivating factor” standard of causation for status based discrimination claims under §2000e-2(a).[xxxi] The Court continued its analysis by reviewing its 2009 decision in Gross v. FBL Financial Services, Inc., where it held, inter alia, the appropriate causation standard in cases under the Age Discrimination in Employment Act (“ADEA”) was the “but-for” standard, not the motivating factor standard.[xxxii] This finding by the Court in Gross was based on the statutory language of the Civil Rights Act of 1991 that adopted the motivating factor standard for status based discrimination claims under Title VII.[xxxiii]

The anti-retaliation provision of Title VII in §2000e-3(a) is set forth in a different section than the status based discrimination provision contained in §2000e-2(a).[xxxiv] The Court examined Title VII’s anti-retaliation provision and noted that it makes it unlawful for an employer to discriminate against an employee “because he has opposed any practice made an unlawful employment practice… or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing [under Title VII].”[xxxv] The Court determined that the similarity between the text in §2000e-3(a) and the text of the statute at issue in Gross compelled a finding that the proper standard of causation for retaliation claims under §2000e-3(a) was but-for causation.[xxxvi]

The Court rejected the arguments offered by Nassar and the United States that the motivating factor standard applied to retaliation claims.[xxxvii] The Court found that Congress, in enacting the Civil Rights Act of 1991, limited the types of unlawful employment practices applicable to the motivating factor standard to the five status-based discrimination claims contained in §2000e-2(a).[xxxviii] The Court further found Congress had omitted retaliation from the provision of the 1991 Civil Rights Act that adopted the motivating factor standard and stated it would be improper to conclude that retaliation was within its scope.[xxxix] The Court also concluded the arguments in favor of the motivating factor standard for retaliation claims were inconsistent with the design and structure of the statute as a whole.[xl]

The Court further noted a “proper interpretation and implementation of §2000e-3(a) and its causation standard” were important to “the fair and responsible allocation of resources in the judicial and litigation systems” given the large number of retaliation claims that are being filed with the Equal Employment Opportunity Commission (“EEOC”).[xli] A less restrictive causation standard, the Court concluded, could encourage the filing of frivolous retaliation lawsuits and make it more difficult to resolve such cases at the summary judgment stage.[xlii] This would impose additional costs on employers where the complained-of actions “were not in fact the result of a discriminatory or retaliatory intent.”[xliii]

The Court also rejected the arguments of Nassar and the United States that the motivating factor standard for retaliation claims was consistent with the EEOC’s longstanding view as expressed in the EEOC’s guidance manual and that such view was entitled to deference.[xliv] The Court found the EEOC’s guidance manual failed to address the “particular interplay” between the specific provisions of Title VII’s statutory scheme and was not entitled to deference.[xlv]

Finally, the Court rejected Nassar’s argument that the Court’s decision in Price Waterhouse should control.[xlvi] The Court found the Civil Rights Act of 1991 displaced the framework it set in Price Waterhouse and such a finding would be inconsistent with its Gross reasoning, as well as the plain textual meaning of the word “because” as it appears in §2000e-3(a) and §623 — the statutory provision at issue in Gross.[xlvii]

The Court concluded by holding the but-for standard of causation governed claims under §2000e-3(a), which “requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”[xlviii]

The Court’s holding in Nassar is welcome news for employers who have been inundated with retaliation claims following the Court’s 2006 decision in White v. Burlington Northern & Santa Fe R.R. The but-for standard of causation for Title VII retaliation claims should make it easier for employers to successfully challenge retaliation claims at the summary judgment, reducing the costs and risks of litigation for employers in such cases.

 *Greg Grisham is a Partner with the Memphis Office of Jackson Lewis LLP, a national workplace law firm, and a member of the TBA’s Labor & Employment Section. Mr. Grisham may be reached by phone at (901) 462-2616 or by e-mail at gregory.grisham@jacksonlewis.com.


[i]Citations to the case will be to the Lexis version of the opinion 2013 U.S. LEXIS at *__.

[ii]2013 U.S. LEXIS at *10.

[iii]Id.

[iv]Id.

[v]Id.

[vi]Id.

[vii]Id.

[viii]2013 U.S. LEXIS at *10-11.

[ix]2013 U.S. LEXIS at *11.

[x]Id.

[xi]Id.

[xii]Id.

[xiii]Id.

[xiv]Id.

[xv]2013 U.S. LEXIS at *11-12.

[xvi]2013 U.S. LEXIS at *12.

[xvii]Id.

[xviii]Id.

[xix]Id.

[xx]2013 U.S. LEXIS at *12-13.

[xxi]2013 U.S. LEXIS at *13.

[xxii]Id.

[xxiii]2013 U.S. LEXIS at *13-14.

[xxiv]2013 U.S. LEXIS at *13.

[xxv]2013 U.S. LEXIS at *13-14.

[xxvi]2013 U.S. LEXIS at *14.

[xxvii]2013 U.S. LEXIS at *14-16.

[xxviii]2013 U.S. LEXIS at *15.

[xxix]2013 U.S. LEXIS at *16.

[xxx]2013 U.S. LEXIS at *16-17.

[xxxi]2013 U.S. LEXIS at *18-19 (citing 42 U.S.C.§2000e-2(m))

[xxxii]2013 U.S. LEXIS at *21 (quoting 537 U.S. 167, 176 (2009)).

[xxxiii]Nassar, 2013 U.S. LEXIS at *22-23.

[xxxiv]2013 U.S. LEXIS at *23-24.

[xxxv]Id.

[xxxvi]2013 U.S. LEXIS at *24.

[xxxvii]2013 U.S. LEXIS at *25-35.

[xxxviii]2013 U.S. LEXIS at *25-26.

[xxxix]2013 U.S. LEXIS at *26-27.

[xl]2013 U.S. LEXIS at *28-32.

[xli]2013 U.S. LEXIS at *34.

[xlii]2013 U.S. LEXIS at *35.

[xliii]Id.

[xliv]2013 U.S. LEXIS at *38-42.

[xlv]2013 U.S. LEXIS at *40.

[xlvi]2013 U.S. LEXIS at *41-42 (citing 490 U. S. 228 (1989)).

[xlvii]2013 U.S. LEXIS at *41.

[xlviii]2013 U.S. LEXIS at *42.