Supreme Court Raises Bar to Prove Discriminatory Retaliation Cases

In a 5- 4 decision announced June 24, 2013, the United States Supreme Court made it more difficult for workers to prove they have been retaliated against on the job. In the decision of University of Texas Southwestern Medical Center v Nassar, the Court clarified the standard for plaintiffs who claim they have faced negative employment decisions in retaliation for complaints of employment discrimination in Title VII actions. Title VII of the Civil Rights Act of 1964 prohibits employers from making employment related decisions where the decision is motivated by a person’s trait, such as race, color, religion, sex or national origin. Justice Kennedy, in writing for the majority, noted that a plaintiff, in making a retaliation claim, must establish that his or her protected activity (e.g., filing the Complaint), was the “but for” cause of the alleged adverse action by the employer. The “but for” test is commonly used to determine actual causation. The test in the retaliation context simply asks: but for the existence of a complaint, would the employment action have occurred.

In a thorough examination of the text, structure and history of Title VII, including the Civil Rights Act of 1991, Justice Kennedy said that retaliation cases should have a higher standard of proof than in regular employment discrimination cases under Title VII. In a typical discrimination case, employers can be liable if wrongful discrimination is a “motivating factor” in the employment decision.

The case concerns Naiel Nassar, a physician of Middle Eastern descent, who resigned from his university position claiming illegal discrimination from a supervisor based upon unlawful considerations of his religious and ethnic heritage. He further claimed he was retaliated against and was not allowed to keep his job at an affiliate hospital due to his complaints. The university’s Chair of Internal Medicine had protested the plaintiffs continued employment at the affiliate hospital because once an employee resigned from the university, they could no longer work at the hospital pursuant to an underlying agreement.

Mr. Nassar sued the university claiming racial and religious discrimination and retaliation. Originally, the jury found for the plaintiff on all counts and awarded him $400,000 in back pay and $3,000,000 in compensatory damages, later reduced to $300,000 by the District Court. The Court of Appeals affirmed in part and vacated in part, but affirmed the retaliation award ruling that the Chair of Internal Medicine was motivated, at least in part, to retaliate against the plaintiff for his complaints about his supervisor. The Supreme Court granted review of the case on the issue of the proper standard of causation for Title VII retaliation claims because the U.S. Circuit Courts of Appeals were divided on the correct standard. Up until this case, the First, Sixth and Seventh Circuits required plaintiffs to show there would have been no adverse action but for the plaintiff’s complaint, while the Fifth and Eleventh Circuits required plaintiffs to show that a desire to retaliate was a “motivating” factor on the employer’s part.

Justice Kennedy noted that the proper causation standard in retaliation cases was needed because the number of such cases with the EEOC had nearly doubled in the last 15 years, rising to more than 31,000 in 2012. Ultimately, the Court vacated the Fifth Circuit’s decision and remanded the case for further proceedings consistent with the Supreme Court’s decision.

In sum, employers who are now defending Title VII retaliation cases can successfully argue that the plaintiff has the burden of proving that he or she would not have experienced a negative employment action “but for” his or her prior complaint. In turn, the employer is not liable if it would have taken the same action, i.e., discipline, termination or not hired an applicant for other non-discriminatory reasons. Further, defendants in Title VII retaliation claims may also consider if they have grounds to ask for reconsideration if prior Court rulings have allowed a plaintiff to use a “motivating” factor standard. Finally, an employer’s best protection against retaliation claims continues to be written documentation demonstrating legitimate non-discriminatory business reasons for taking unfavorable employment actions against employees.

Elizabeth Rae-O’Donnell, an attorney in our Livonia office, concentrates her practice on municipal law and labor and employment law. She can be reached at (734) 261-2400 or