Supreme Court Adopts Heightened Standard for Employee Retaliation Claims

Recently, the Supreme Court of the United States issued its decision in University of Texas Southwestern Medical Center v. Nassar, which raises the bar for employees who file Title VII retaliation claims against their employers.

Title VII protects employees from discrimination based on race, sex or gender, religion, or national origin.  Title VII also protects employees against certain forms of retaliation.  Specifically, Title VII prohibits an employer from retaliating against an individual who has opposed, complained of, or participated in any complaint of unlawful employment practices by the employer. Retaliation can take many forms, including actions relating to terms and conditions of employment (i.e. hiring, firing, promotions, etc.), disciplinary actions and even discriminatory acts that occur outside the workplace.

For an employee to prevail under Title VII for a claim of retaliation, the employee must show some causal link between an adverse employment action and the employee’s protected activity.  Although federal district courts have been divided on just what type of proof an employee must establish in order to succeed on a Title VII retaliation claim, the key inquiry has always been the employer’s motivation. Some courts have allowed employees to prove retaliation claims by establishing that the employer’s action or decision was motivated by the employee’s complaint or other protected activity, even if the employer also had other lawful motives that caused the employer’s action or decision. Other courts, however, have applied a more stringent standard that requires employees to prove that the employer would not have taken the challenged employment action “but for” the employee’s complaint or engagement in other protected activity.

In Nassar, the Supreme Court clarified that in order to prove retaliation under Title VII, an employee must prove “but-for” causation – that the employee’s complaint of unlawful employment practices was the “but-for” reason for the challenged employment action rather than just one of many reasons. Proving that a challenged employment action was motivated by discriminatory reasons, even if the employer’s action was also motivated by other lawful reasons, is no longer sufficient to succeed with a retaliation claim.

What does the Court’s decision mean for employers?

The Court’s decision in Nassar is of particular significance because the number of retaliation claims filed by employees has significantly increased in recent years and has nearly doubled from 1997 to 2012, according to EEOC statistics. Requiring employees to prove “but-for” causation in a Title VII retaliation claim should make it easier for employers to succeed at the early stages of litigation and will hopefully curb the filing of frivolous claims that cost employers time and money to defend. That is not to say that employers no longer need to apply or enforce anti-retaliation policies. Documenting performance problems and adhering to consistent disciplinary and termination practices continues to be of critical importance for employers as evidence of legitimate and non-discriminatory reasons for any challenged employment action.

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