Juhi Tariq

In University of Texas Southwestern Medical Center v. Nassar[1], the Supreme Court heightened the causation standard for retaliation claims under Title VII of the Civil Rights Act.[2] The Court held that an employee must prove that the only reason an employer retaliated was because the employee engaged in a protected activity, which it defined to include reporting harassment or discrimination.  By heightening the burden of production for employees to bring retaliation claims, the case not only limits employer liability under Title VII, but also provides increased guidance to employers and employees litigating such claims.

Naiel Nasser, a doctor of Middle Eastern descent, alleged that one of his supervisors was biased against him due to his religion and ethnic heritage because she closely scrutinized his billing practices and made comments that “Middle Easterners are lazy.”   Nasser brought two discrimination claims under Title VII of the Civil Rights Act: a status-based discrimination claim under 2(a) against his supervisor, and a retaliation claim under 3(a) against the University’s Chair of Internal Medicine because he prevented Nasser from working in a hospital position under a different supervisor.[3]  Although the Fifth Circuit vacated the jury’s verdict on the 2(a) claim, it affirmed the 3(a) claim, and the Supreme Court granted certiorari to determine the appropriate standard to evaluate 3(a) retaliation claims.[4]

Justice Kennedy, writing for the Court, distinguished the causation required in status-based discrimination claims from retaliation claims.  He clarified that status-based discrimination based on the employee’s race, color, religion, sex or national origin requires an employee to show only that his or her status was a “motivating factor” required by subsection 2(m).[5]   The “motivating factor test” also applied to retaliation claims, and required an employee to demonstrate that the employer’s discriminatory action, based on the express protected classes in 2(m), was a motivating factor for the retaliation.[6]   However, Kennedy asserted that because Congress deliberately omitted retaliation claims from the “motivating factor” provision in 2(m), the Court is required to “give effect to Congress’ choice” and derive a heightened causation standard for retaliation claims. [7]  Instead of the “motivating factor” test, Kennedy asserted that employees claiming retaliation under 3(a) need to demonstrate that the retaliation was the “but-for” cause of the challenged employee action.[8]  The Court reasoned that a successful retaliation claim requires an employee to prove that the alleged unlawful retaliation, such as Nasser’s rescinded job offer, would not have occurred absent the alleged wrongful actions of the employer.[9]   Throughout the opinion, the Court reiterated that frivolous retaliation claims could increase if the motivating-factor test, or a lesser causation standard, was implemented and could prevent employers from taking otherwise lawful disciplinary action.[10]

In her dissent affirming the Fifth Circuit decision, Justice Ginsberg’s analysis of Congressional intent and prior jurisprudence led her to conclude that subsection 2(m) included retaliation claims because of the close and historical nexus between discrimination and retaliation.   Ginsburg further noted that the Court’s decision would exacerbate confusion among juries by requiring the application of different standards for the same facts, and pointed to EEOC guidelines that apply the motivating factor test to retaliation claims.[11]  Conversely, the majority opinion dismissed reliance on the EEOC guidelines as unpersuasive, written in general terms, and without a clear reference to specific statutory provisions.[12]

Nassar is notable primarily because it explicitly clarifies the employee’s burden of proof for retaliation claims.[13]  Perhaps more importantly, the decision will provide judges greater authority to prevent the retaliation component of discrimination cases from reaching juries, thereby reducing the cost and complexity of fighting multiple discrimination claims. [14]  The result may also reduce the value of settlement agreements. [15]  Under Nassar, an employer defendant with this heighted causation standard has a lower burden of production to bring forth alternate reasons for an employment decision that a plaintiff characterizes as retaliation. [16]   Commentators have noted that the Court’s focus on a formalist textual approach may also influence lower courts to look more closely to the ordinary meaning of a particular statute, structure, and legislative history if “but-for” causation is at issue. [17]  Nevertheless, employers must remember to scrutinize and remain diligent while making any employment decisions to ensure that each decision is legitimate and based on facts specific to an employee’s performance.


[1] University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013).

[2] 42 U.S.C. § 2000e et seq (1964).

[3] 133 S.Ct. at 2524; 42 U.S.C. §§ 2000e-2(a), 3(a).

[4] University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 978 (2013) (granting certiorari on to review whether the Title VII retaliation provision “require[s] a plaintiff to prove but-for causation . . . or instead require proof that the employer had a mixed motive.”).

[5] § 2000e-2(m) (1991) (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.”).

[6] Id.

[7] Id. at 2529 (quoting Gross v. FBL Financial Services, Inc., 557 U.S. 167, 177, n. 3 (2009)).

[8] Id. at 2525, 2527 (explaining that the anti-retaliation provision, 3(a), makes it unlawful for an employer to retaliate against an employee participating in “protected employee conduct” which includes an employee’s opposition to discrimination, and the employee’s submission of or support for a complaint that alleges employment discrimination).

[9] Nassar, 133 S.Ct. 2517 (2013).

[10] Id. at 2530.

[11] Id.  at 2527, 2529, 2532.

[12] Id.  at 2531-32.

[13] Tom Starner, Weighing the Supreme Court’s Decisions, Human Resources Executive Online (June 27, 2013), https://www.hreonline.com/HRE/view/story.jhtml?id=534355638.

[14] Kevin Russell, Court Rules for Employers in Two Employment Discrimination Cases, Scotus Blog (June 24, 2013), https://www.scotusblog.com/2013/06/court-rules-for-employers-in-two-employment-discrimination-cases/.

[15] Id.

[16] Starner, supra note 13.

[17] Executive Alert, Baker Hostetler (June 26, 2013), https://www.jdsupra.com/legalnews/us-supreme-court-declines-to-loosen-ca-68493/

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