A turn for the worse in retaliation cases?

The United States Supreme Court has agreed to review Univ. of Texas Southwestern Med. Ctr. v. Nassar, which raises the question of what legal standard applies to causation under Title VII's anti-retaliation provision and similarly worded statutes. In short, the issue is whether a plaintiff must show that retaliation was the “but for” cause of the adverse action taken by the defendant or, alternatively, whether retaliation was a “motivating factor” in the decision to take adverse action. The United States Court of Appeals for the Fifth Circuit held that the governing standard is “motivating factor” rather than “but for” cause. That the United States Supreme Court has agreed to hear the case has prompted some legal analysts to conclude that the Court is now seeking to establish an across-the-board “but for” standard in retaliation cases. Commentators have suggested that such a ruling would make it more difficult for plaintiffs to succeed with retaliation claims going forward.

As a threshold matter, a “but for” standard generally should be similar to a “motivating factor” standard. The United States Supreme Court has already adopted the “but for” standard under the Age Discrimination in Employment Act (“ADEA”). Gross v. FBL Financial Servs., Inc., 129 S.Ct. 2343 (2009). Accordingly, ADEA precedent addressing the standard of proof is instructive. Such precedent indicates that being the “but for” cause does not mean being the only or even the decisive factor in a defendant’s decision to take adverse action: “[w]hatever the employer’s decisionmaking process . . . the employee’s protected trait actually played a role in that process and had a determinative influence on the outcome.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (emphasis added); see also Safeco Ins. Co. of Amer. v. Burr, 551 U.S. 47, 63 (2007) (emphasis added) (reiterating that the “but-for” cause is “a necessary condition” of the challenged conduct). To quote a National Employment Lawyers Association colleague, Alice Ballard, “even the straw that broke the camel’s back is the ‘but-for’ cause.”

Construing anti-retaliation provisions of employment and civil rights statutes in a narrow fashion, moreover, would run counter to the robust line of cases recently decided by the United States Supreme Court concerning retaliation claims. Time and time again, the United States Supreme Court has interpreted anti-retaliation provisions broadly – including reading such provisions into statutes when there was no supporting statutory text – and expanded the scope of actionable conduct by ruling, among other things, that adverse action against third parties or a person who simply responds to questions about a third party’s allegation of discrimination can be the basis for a valid retaliation claim. See, e.g., Kasten v. Saint-Gobain Perform. Plastics Corp., 131 S.Ct. 1325, 1329 (2011) (establishing that the anti-retaliation section of the Fair Labor Standards Act protects employees who only make an oral complaint); Thompson v. North Amer. Stainless, LP, 131 S.Ct. 863, 868 (2011) (in a unanimous opinion announced by Justice Antonin Scalia, holding that adverse action against a third party can support a retaliation claim under Title VII); Crawford v. Metropolitan Government of Nashville, 129 S. Ct. 846, 849 (2009) (in an opinion authored by Justice David Souter, ruling that Title VII’s anti-retaliation provision protects employees from retaliation when employees merely participate in an employer’s internal investigation of a potential Title VII violation); Gomez-Perez v. Potter, 553 U.S. 474, 478-79 (2008) (in an opinion authored by Justice Samuel Alito, effectively reading an anti-retaliation provision into the ADEA); Burlington North and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (holding that adverse action supporting a retaliation claim includes any conduct that “might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’”).

In sum, the United States Supreme Court’s ruling in Nassar should not result in a restriction of anti-retaliation protections. Unfortunately, what should happen is not necessarily what will happen. More will be said in this space about the matter once the decision is rendered.