July 2013 Volume XII No. 10 Taking Care of Business
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Supreme Court Makes it Harder for Employees to Prove Title VII Retaliation Claims

Larry Evans
Larry Evans

In two major victories for the management-side employment law bar, the Supreme Court of the United States handed down a pair of rulings on June 24, 2013, making it harder for plaintiffs to prove workplace discrimination and retaliation. In University of Texas Southwestern Medical Center v. Nassar, No. 12-484, the Court ruled in a 5-4 decision, authored by Justice Kennedy that Title VII retaliation claims require proof of “but for” causation, which will require plaintiffs to prove that the alleged unlawful and retaliatory employment action would not have occurred in the absence of the employer’s alleged wrongful conduct.


The case stemmed from a discrimination and retaliation lawsuit filed against the Petitioner, University of Texas Southwestern Medical Center (the “University”) by Respondent, Dr. Nassar (“Nassar”), a doctor of Middle Eastern descent and faculty at the University. Nassar complained internally that his supervisor was overly critical of his work because of alleged bias based on his religion and ethnic heritage. The University had an agreement with an affiliate hospital that the affiliate hospital’s doctors would also be members of the University’s faculty. When Nassar resigned from the University alleging harassment at the hands of his supervisor, he attempted to arrange to stay on staff at the hospital; however, the hospital’s job offer was withdrawn after learning that Nassar was no longer faculty with the University. Nassar claimed that the University had retaliated against him by having his job offer revoked due to his complaints of religious and ethnic discrimination. The 5th Circuit Court of Appeals affirmed the retaliation decision stating that the University was motivated, at least in part, by Nassar’s complaints against his supervisor. The Supreme Court’s decision defined the proper standard of causation for Title VII retaliation claims.

Supreme Court Decision

The Court held that “Title VII retaliation claims must be proved according to traditional principles of but-for causation . . . . This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” This standard is a higher standard of proof than the EEOC’s guidance on the issue and a split in the Circuits, which merely required the employment action to have been a motivating factor rather than the “but for” cause.

In rationalizing the decision for practical purposes of requiring the “but for" retaliation standard, the Court noted:

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 temped 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.

The Court noted that any lesser standard than the “but for” standard in retaliation cases would “make it far more difficult to dismiss dubious claims at the summary judgment stage.”

The Nassar decision will certainly have long lasting and immediate effects on Title VII retaliation litigation and EEOC Charges. Successfully defending employment litigation claims and/or administrative charges requires strategic planning and experienced litigation counselors. At Hoeppner Wagner & Evans LLP, our employment and labor attorneys have deep knowledge and decades of experience counseling employers on how to comply with Title VII and related state legislation, as well as experience that is second to none in defending employment litigation matters brought against employers of all sizes.

If you have any questions about Title VII litigation or any other employment law matter, contact your Hoeppner Wagner & Evans LLP relationship attorney.

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