Title VII Retaliation Requires ‘But For' Proof, Divided Supreme Court Decides in 5-4 Split

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A plaintiff alleging unlawful retaliation for protected opposition to suspected discrimination under Title VII of the 1964 Civil Rights Act must prove retaliation was the “but for” cause of the adverse employment action, a divided U.S. Supreme Court ruled June 24 (Univ. of Tex. Sw. Med. Ctr. v. Nassar, U.S., No. 12-484, 6/24/13).

In a 5-4 decision, the court reversed a U.S. Court of Appeals for the Fifth Circuit decision that a Title VII retaliation plaintiff could prevail if he showed retaliation was a “motivating factor,” among others, for an employer taking adverse action.

In a March 2012 decision, the Fifth Circuit affirmed a Title VII retaliation judgment for Naiel Nassar, an Egyptian-born former University of Texas Southwestern Medical Center (UTSW) faculty member who alleged the university sabotaged Nassar's job prospects with Parkland Hospital in Dallas because Nassar previously had complained to UTSW about a supervisor's alleged bias against Arabs and Muslims ( 674 F.3d 448, 114 FEP Cases 986 (5th Cir. 2012)).

The justices granted review in January (7 WIR 87, 2/4/13) and heard oral argument April 25.

Writing for the majority, Justice Anthony Kennedy said the provision in the Civil Rights Act of 1991 addressing “mixed motive” claims only pertains to “status discrimination” under Title VII, meaning alleged discrimination based on race, sex, and other protected characteristics, and not to retaliation claims, which are treated separately under Title VII.

The court cited Gross v. FBL Financial Services Inc., 557 U.S. 167, 106 FEP Cases 833 (2009), in which the court ruled “but for” rather than “mixed motive” analysis applies under the Age Discrimination in Employment Act, as “instructive” in reaching the same conclusion regarding Title VII retaliation claims.

“The text, structure, and history of Title VII demonstrate that a plaintiff making a retaliation claim under [42 U.S.C.] § 2000e-(3)(a), must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer,” Kennedy wrote.

Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito joined the majority opinion.

Dissent Suggests Congress Must Act

In dissent, Justice Ruth Bader Ginsburg objected that under Title VII, “the ban on discrimination and the ban on retaliation against a discrimination complainant have traveled together” and asserted that the majority misinterpreted both Title VII's text and court precedent by splitting the causation standards for discrimination and retaliation claims.

Remarking that the majority “appears driven by a zeal to reduce the number of retaliation claims filed against employers,” the dissent said Congress had “no such goal in mind” when it enacted the 1991 Civil Rights Act.

Ginsburg wrote that “today's misguided judgment … should prompt yet another Civil Rights Restoration Act.”

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined the dissent.

Majority Cites Title VII's Text, Structure

The court, citing tort law principles, said the “but for” causation standard is the Title VII default standard. The 1991 Civil Rights Act only addressed “status discrimination,” not the separate retaliation provision, when it adopted the modified Price Waterhouse v. Hopkins mixed motive analysis for proving an unlawful employment practice, the court added.

Title VII's anti-retaliation provision, “like the statute at issue in Gross, makes it unlawful for an employer to take adverse employment action 'because of' certain criteria,” Kennedy wrote. “Given the lack of meaningful textual difference between the text in this statute and the one in Gross, the proper conclusion here, as in Gross, is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.”

The court said Nassar's and the Justice Department's arguments that the “motivating factor” standard instead applies is based on Title VII defining retaliation to be an “unlawful employment practice”; the 1991 Civil Rights Act amendment (codified as 42 U.S.C. § 2000e-2(m)) allowing unlawful employment practices, specified to include race discrimination, to be proved based on a motivating factor test; and the court's prior statements that “retaliation for complaining about race discrimination is 'discrimination based on race.' ”

But the court said this suggested reading of Section 2000e-2(m) is “inconsistent with the provision's plain language.”

“[T]he test of the motivating factor provision, while it begins by referring to 'unlawful employment practices,' then proceeds to address only five of the seven [Title VII] prohibited discriminatory actions--actions based on the employee's status, i.e., race, color, religion, sex, and national origin,” Kennedy wrote. “This indicates Congress's intent to confine that provision's coverage to only those types of employment practices. The text of § 2000e-2(m) says nothing about retaliation claims.”

Nassar's and DOJ's reading also is inconsistent with Title VII's design and structure, the court said.

“When Congress wrote the motivating-factor provision in 1991, it chose to insert it as a subsection within § 2000e-2, which contains Title VII's ban on status-based discrimination and says nothing about retaliation,” Kennedy wrote. “The title of the section of the 1991 Act that created § 2000e-2(m)--'Clarifying prohibition against impermissible consideration of race, color, religion, sex, or national origin in employment practices'--also indicates that Congress determined to address only claims of status-based discrimination, not retaliation.”

That Congress elsewhere in the 1991 act expressly referred to “all unlawful employment practices,” reinforces the conclusion Congress acted deliberately when it omitted retaliation from § 2000e-2(m), the court said.

Cited Decisions Called Irrelevant

Nassar and DOJ erred in suggesting past Supreme Court decisions interpreting federal anti-discrimination laws have, as a general matter, treated bans on status-based discrimination as also prohibiting retaliation, the court said.

Those cited decisions, including CBOCS West Inc. v. Humphries, 553 U.S. 442, 103 FEP Cases 481 (2008), and Gomez-Perez v. Potter, 553 U.S. 474, 103 FEP Cases 494 (2008), “are not controlling here,” the court said.

“It is true these cases do state the general proposition that Congress' enactment of a broadly phrased antidiscrimination statute may signal a concomitant intent to ban retaliation against individuals who oppose that discrimination, even where the statute does not refer to retaliation in so many words,” Kennedy wrote. “What those cases do not support, however, is the quite different rule that every reference to race, color, creed, sex, or nationality in an antidiscrimination statute is to be treated as a synonym for 'retaliation.' ”

Section 2000e-2(m) is not a substantive bar on discrimination, but rather a rule establishing the causation standard for proving a violation found elsewhere in Title VII, the court emphasized. “The cases cited by [Nassar] and the government do not address rules of this sort, and those precedents are of limited relevance here,” Kennedy wrote.

Title VII differs markedly from the anti-discrimination laws discussed in the cited decisions, the court said.

“In light of Congress's special case in drawing so precise a statutory scheme [in Title VII], it would be improper to indulge [Nassar's] suggestion that Congress meant to incorporate the default rules that apply only when Congress writes a broad and undifferentiated statute,” Kennedy wrote.

Congress's approach to the ADA provides “further confirmation” of the “inapplicability of § 2000e-2(m) to retaliation claims,” the court said.

“That law, which Congress passed only a year before enacting § 2000e-2(m) and which speaks in clear and direct terms to the question of retaliation, rebuts the claim that Congress must have intended to use the phrase 'race, color, religion, sex, or national origin' as the textual equivalent of 'retaliation,' ” Kennedy wrote. “To the contrary, the ADA shows that when Congress elected to address retaliation as part of a detailed statutory scheme, it did so in clear textual terms.”

Policy Arguments Also Favor 'But For' Test

The majority said “proper interpretation and implementation” of Title VII's anti-retaliation provision have “particular significance” as retaliation claims are “being made with ever-increasing frequency,” including a near-doubling in the past 15 years of EEOC retaliation charges.

“[L]essening the causation standard also could contribute to the filing of frivolous claims, which would siphon resources from efforts by employer[s], administrative agencies, and courts to combat workplace harassment,” Kennedy wrote.

The court related the hypothetical case of an employee about to be fired for performance reasons who makes “an unfounded charge” of discrimination and thereby obtains the protection of Title VII's anti-retaliation provision. If a causation standard less stringent than “but for” cause applied, the court said, it would be “far more difficult” to dismiss “dubious claims” at the summary judgment stage.

“It would be inconsistent with the structure and operation of Title VII to raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent,” Kennedy wrote. “Yet there would be a significant risk of that consequence if respondent's position were adopted here.”

No Deference to EEOC

Nassar and the Justice Department argued the motivating factor causation standard is consistent with long-standing EEOC guidance under Title VII, to which the court should defer.

But the court said the agency's explanations for its position, contained in the EEOC Compliance Manual, “lack the persuasive force that is a necessary precondition to deference.”

“The [EEOC] manual's failure to address the specific provisions of this statutory scheme, coupled with the generic nature of its discussion of the causation standards for status-based discrimination and retaliation claims, call the manual's conclusions into serious question,” Kennedy wrote.

Nassar argued that, even if Section 2000e-2(m) does not apply, then Price Waterhouse, 490 U.S. 228, 49 FEP Cases 954 (1989), controls his case and the judgment below can be affirmed based on the mixed motive analysis in that decision.

But the Supreme Court said Nassar's position is foreclosed by the 1991 amendments.

“Given the careful balance of lessened causation and reduced remedies Congress struck in the 1991 Act, there is no reason to think that different balance articulated by Price Waterhouse somehow survived that legislation's passage,” Kennedy wrote. “Second, even if this argument were still available, it would be inconsistent with the Gross Court's reading (and the plain textual meaning) of the word 'because' as it appears both in [the ADEA] and [Title VII's anti-retaliation provision] §2000e-3(a).”

Jury Confusion Likely Outcome, Dissent Says

In dissent, Ginsburg said by “reining in” Title VII retaliation claims, the majority “misapprehends” Supreme Court rulings that “retaliation is tightly bonded to the core prohibition” against discrimination based on sex, race, or other personal characteristics and “cannot be disassociated from it.”

The majority also “shows little regard for the trial judges” who will be required to charge juries “with discrete causation standards” for Title VII discrimination and retaliation claims, the dissent said.

“Juries will puzzle over the rhyme or reason for the dual standards,” Ginsburg wrote. “Of graver concern, the Court has seized on a provision, § 2000e-2(m), adopted by Congress as part of an endeavor to strengthen Title VII, and turned it into a measure reducing the force of the ban on retaliation.”

The dissent said “scant reason” exists to believe Congress, which in the 1991 Civil Rights Act expressly aimed to “restore and strengthen” the anti-discrimination laws, also meant to exclude Title VII retaliation claims from the newly enacted “motivating factor” standard.

Although the majority “ascribes to Congress the unlikely purpose of separating retaliation from discrimination claims, thereby undermining the Legislature's effort to fortify the protections of Title VII,” the dissent said, “none of the reasons the court offers in support of its restrictive interpretation of § 2000e-m(2) survives inspection.”

“The Court shows little regard for trial judges who must instruct juries in Title VII cases in which plaintiffs allege both status-based discrimination and retaliation,” Ginsburg wrote. “Nor is the Court concerned about the capacity of jurors to follow instructions conforming to today's decision.”

“Causation is a complicated concept to convey to juries in the best of circumstances,” the dissent said. “Asking jurors to determine liability based on different standards in a single case is virtually certain to sow new confusion. That would be tolerable if the governing statute required double standards, but here, for the reasons already stated, it does not.”

Daryl Joseffer of King & Spalding in Washington, D.C., represented UTSW before the Supreme Court. Brian Lauten of Sawicki & Lauten in Dallas represented Nassar. Solicitor General Donald B. Verrilli represented DOJ as amicus for Nassar.

Text of the opinion is available at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-98ylj7.

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