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Title VII Retaliation Claims Require But-For Causation

By:  Dana Chang, an associate at Clarke Silverglate, P.A. in Miami, Florida

In a recent opinion, University of Texas Southwestern Medical Center v. Nassar, the U.S. Supreme Court held that retaliation claims brought under Title VII require but-for causation. In reversing a Fifth Circuit Court of Appeals’ decision, the Court foreclosed mixed-motive liability in Title VII retaliation claims. The Court reasoned that the statute’s “because of” language precludes a mixed-motive framework.

Facts of the Case

The plaintiff, Dr. Nassar, is a physician of Middle Eastern descent who was an assistant professor at the University of Texas Southwestern Medical Center (UTSMC) and a physician at Parkland Memorial Hospital (PMH), a UTSMC affiliate. Pursuant to an affiliate agreement, PMH is required to offer available physician positions to UTSMC faculty members. Dr. Nassar alleged that his UTSMC supervisor, Dr. Levine, singled him out because of his religion and ethnic heritage and undeservedly scrutinized his billing and productivity. As a result of the alleged harassment, Dr. Nassar sought employment solely at PMH. PMH offered Dr. Nassar a staff physician position. Dr. Nassar resigned from UTSMC and sent a letter to Dr. Levine’s supervisor, Dr. Fitz, and other employees stating that the reason for his departure was Dr. Levine’s “religious, racial and cultural bias against Arabs and Muslims.” Dr. Fitz then objected to PMH’s offer, asserting that it was contrary to the affiliate agreement. PMH withdrew its offer, and Dr. Nassar sued UTSMC for constructive discharge and retaliation in violation of Title VII. After a jury verdict against UTSMC on both counts, the Fifth Circuit reversed the verdict on constructive discharge and affirmed the retaliation finding on the theory that retaliation claims brought under Title VII require only a showing that the retaliation was a motivating factor for the adverse employment action, rather than the but-for cause.

The Decision

Title VII prohibits discrimination against an employee based on race, color, religion, sex or national origin (“status-based discrimination”). It also prohibits an employer from retaliating against an employee for opposing, seeking relief for or participating in an investigation of unlawful discrimination. In status-based cases, an employee need only prove that the discrimination was a motivating factor in his employer’s adverse action. In a 5-4 decision, the Supreme Court held that retaliation cases do not enjoy the benefit of the lesser causation standard. In so holding, the Court reasoned that the statute’s language and construction demonstrates the Legislature’s intent that retaliation cases require typical but-for causation.

Win for Employers

The Court’s decision is a win for employers. In the last 15 years, the number of retaliation claims filed with the EEOC has nearly doubled from 16,000 in 1997 to over 31,000 in 2012. The heightened causation standard will make proving retaliation claims that much harder and may deter employees from filing frivolous claims.