U.S. Supreme Court Decides on Restrictive Interpretation of Required Causation for Title VII Employer Retaliation, Circumventing Congressional Amendment

The United States Supreme Court decided two very closely watched employment law cases interpreting employer discrimination under Title VII of the 1964 Civil Rights Act.  This second case, University of Texas Southwestern Medical Center v. Nassar, like the former, was decided 5-4 in favor of the employer’s interpretation.[1]  In Nassar, the Court held that the appropriate standard of causation for proving retaliation in violation of Title VII of the 1964 Civil Rights Act was “but-for-causation,” rather than the more lenient “motivating factor” burden of Congress’s 1991 Civil Right Act amendment.

Case Details

The petitioner and employer was a University of Texas medical center specializing in medical education. The university had an affiliation agreement with Parkland Memorial Hospital, which requires the Hospital to offer vacant staff physician posts to University faculty members. The respondent, Mr. Nassar, a physician of Middle Eastern descent, was a University faculty member and a Hospital staff physician.  Nassar claimed that Dr. Levine, one of his supervisors at the University, was biased against him on account of his religion and ethnic heritage.[2] 

On different occasions Nassar complained to Dr. Fitz, Levine’s supervisor, about alleged ethnic and religious harassment.  Nassar arranged to continue working at the Hospital without also being on the University’s faculty.[3]  When Nassar resigned his teaching post, he sent a letter to Fitz and others, stating that his reason for leaving was because of Levine’s harassment, “religious, racial and cultural bias against Arabs and Muslims."[4]

Upset at Levine’s public humiliation and wanting public exoneration for her, Fitz objected to the hospital’s job offer to Nassar, which the hospital then withdrew.  Nassar claimed that Fitz’s efforts to prevent the Hospital from hiring him were in retaliation for complaining about Levine’s harassment, in violation of §2000e–3(a), which prohibits employer retaliation “because [an employee] has opposed . . . an unlawful employment practice . . . or . . . made a [Title VII] charge.”

Title VII of the Civil Rights Act

Title VII of the 1964 Civil Rights Act, 42 U. S. C. §2000e et seq., manifests the federal policy to prohibit unlawful employment discrimination and retaliation by employers, providing remedies to employees for injuries related to discriminatory conduct by employers.  Title VII prohibits multiple categories of wrongful employer conduct, the most common being status-based discrimination, which is employer discrimination on the basis of race, color, religion, sex, or national origin, in hiring, firing, salary structure, promotion and the like.[5] 

To ensure the effective enforcement of the statute, Title VII also prohibits an employer from retaliating against a worker for complaining about employment discrimination (for example, by filing a complaint with the Equal Employment Opportunity Commission (EEOC), the agency that enforces Title VII).[6]

In general, when the law grants persons the right to compensation for injury from wrongful conduct, there must be some demonstrated connection or linkage, between the injury sustained and the wrong alleged.[7] The requisite relation between prohibited conduct and compensable injury is governed by the principles of causation. At issue in Nassar was the proper standard of causation the Court should apply in the context of an employee’s Title VII claim of employer retaliation.

Motivating Factor Burden

Title VII of the 1964 Civil Rights Act has been characterized by a back-and-forth between the Court and Congress, with Congress overruling a number of the Court’s restrictive interpretations of the statute in the past.  In Price Waterhouse v. Hopkins, 490 U. S. 228, the Supreme Court construed Title VII to require employees to prove that the status-based discrimination was the “but for” cause of the employee’s termination, failure to be hired, etc.  As a result, even if the employer admitted that race was one of the reasons for refusing to hire the worker, the worker could still lose if the jury believed that the employer would not have hired the worker anyway.

In response to this onerous standard, Congress enacted the Civil Rights Act of 1991, amending Title VII by replacing this standard with the motivating factor burden.  Congress added a new subsection to §2000e–2, providing that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”[8] 

Therefore, to prove employer discrimination, the employee is only required to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives for the decision.

The question before the Court in Nassar was whether the more lenient motivating factor burden also applies to claims of employer retaliation under §2000e–3(a), rather than the more onerous “but-for-causation” standard.

But-For-Causation Standard

A Court ruling for the university imposing a “but-for-causation” standard for Title VII retaliation claims would likely make it more difficult for victims of retaliation under Title VII to sue their employers, whereas a “motivating factor” standard could raise the number of frivolous claims filed, increasing the costs borne by employers in defending against potentially meritless litigation and contra the Court’s interest in preserving judicial economy.

The Supreme Court held that employee Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e–2(m).[9]

The decision was based on a close parsing of the statutory text and structure.  Writing for a five-Justice majority, Justice Kennedy explained that the “motivating factor” provision only applies to claims of “discrimination” under Title VII, meaning discrimination based on race, sex, and religion, rather than retaliation.

Anti-Retaliation Provision

Instead, Title VII’s anti-retaliation provision, §2000e–3(a) appears in a different section, uses considerably similar language to a related statute, the Age Discrimination in Employment Act of 1967 (ADEA) [10] §2000e–3(a) and makes it unlawful for an employer to take adverse employment action against an employee “because of” certain criteria. In Gross v. FBL Financial Services, Inc., 557 U. S. 167 (2009), the Court, interpreting similar language, concluded that the ADEA requires proof that the prohibited criterion was the but-for cause of the prohibited conduct.

Justice Kennedy determined, “Given the lack of any meaningful textual difference between §2000e–3(a) and §623(a)(1), the proper conclusion is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.”[11]

Justice Ginsburg, joined by the other three liberal Justices, strongly dissented. Justice Ginsburg took the unusual step of reading a summary of her dissent from the bench.  She argued that the Court had previously considered retaliation as a form of “discrimination,” and that the majority was ignoring the reasonable interpretation of the EEOC and the underlying purposes of the “motivating factor” amendment.  As she did in Vance, Justice Ginsburg ended her dissent calling for Congress to overturn the decision.

[1] University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ___ (2013).

[2] Id. at ­­­­­__.

[3] Id. at ­­­­­__.

[4] 42 U. S. C. §2000e-3(a)

[5] 42 U. S. C. §2000e-2(a)

[6] 42 U. S. C. §2000e-3(a)

[7] University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ___ (2013).

[8] 42 U. S. C. §2000e–2(m)

[9] University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ___ (2013).

[10] 29 U. S. C. §623.

[11] University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ___ (2013).

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