Retaliation claims are one of the most popular types of claims filed in the field of employment law. In fact, 38% of all charges filed with the EEOC last year, included a claim of retaliation. This is why the Supreme Court’s decision in the University of Texas Southwestern Medical Center v. Nassar, No. 12-484, issued this week, requires attention. The Court decided that in order to establish a claim for retaliation under Title VII, the employee must show that “but for” having enforced their rights under the Act, retaliation would not have happened. Prior to the decision, many courts, including the Second Circuit in New York, only required a “motivating factor” in the employer’s decision to take adverse action against the employee.
Facts of the Case
Dr. Naiel Nassar, who is of Middle Eastern descent, worked as a University faculty member at Parkland Hospital. Dr. Beth Levine, the doctor in charge of the clinic which Nassar worked, questioned Nassar’s work habits and billing practices. When discussing Nassar with another doctor, Dr. Keiser, Levine made remarks such as “Middle Easterners are lazy,” presumably referring to Nasar’s race or ethnicity. Nassar spoke with Dr. Gregory Fitz, the head of Internal Medicine at the Hospital, about Levine’s treatment of Nassar.
Nassar sought promotion and was eventually offered one on June 3, 2006. Nassar saw this as an opptortunity to switch supervisors and no longer work with Levine. The Hospital’s offer was conditioned on Nassar resigning from the University. The University claimed that its affiliation with the Hospital prevented the Hospital from hiring physicians that were not part of the University’s faculty. On the contrary, Nassar stated that there were doctors employed at the hospital who were not from the University. Nassar was set to start on July 10, 2006, and in the interim, he resigned from the University, citing Dr. Levine’s harassment and discrimination as the primary reasons for the resignation. Fitz blocked the promotion and Nassar claimed this was actually a termination and retaliation against him for claiming discrimination in his resignation letter. The Court had to decide whether a person in Nassar’s position would have to show that retaliation was the controlling motive in denying the promotion.
The Court’s Decision
The Court issued a 5-4 decision that a plaintiff in Nassar’s position must show that the adverse employment action would not have occurred without the plaintiff’s claims of discrimination. In the past, the Court decided causation standards for employment discrimination under Title VII and age discrimination under the Age Discrimination Employment Act (“ADEA”). In Price Waterhouse v. Hopkins, the Court established a “motivating factor” standard for Title VII discrimination and in Gross v. FBL Financial Services, the Court set a “but-for” causation standard under the ADEA. In Nassar, the Court reasoned that Title VII retaliation claims should follow the ADEA’s “but-for” standard because of similar language used in the ADEA and in Title VII’s retaliation clause. The phrase “because of” is used in both statutes. The Court equated this language to the “but-for” standard, and held this standard logically applies in the retaliation context.
Along with the language justification, the Court also noted the surge in retaliation claims would continue, and even worsen, if a lower causation standard was established. The Court invoked a judicial economy argument to justify the more exacting causation standard. The Court argued that a lower standard would make it difficult for employers to fence off frivolous claims at the summary judgment stage, and would needlessly exhaust judicial and administrative resources.
What the Decision Means
Even though the Court issued a higher standard for Title VII retaliation claims, employees will unlikely be deterred from filing such claims. Such was the case with ADEA claims after Gross was decided in 2009. In 2009, 22,778 ADEA charges were filed with the EEOC, yet in 2010 the number of charges filed actually increased to 23,264. The decision will make it easier for employers to dismiss frivolous claims at the summary judgment stage, but it will likely not prevent such claims from being filed. It will be wise for employers to continue their anti-retaliation policies, training and investigations. Again, employers can help themselves by properly documenting investigation conclusions and employment decisions.
Also, the Court’s decisions in Vance and Nassar do not have to be followed by state administrations enforcing their harassment and retaliation laws. In New York specifically, the New York Division of Human Rights, the agency which enforces New York’s discrimination laws, follows the EEOC’s definition of “supervisor” and adheres to the lower “motivating factor” causation standard for retaliation claims. When adjusting its workplace policies, an employer needs to keep in mind that states are not obligated to follow the Supreme Court’s rulings.