Eradicating unlawful discrimination and retaliation in the workplace is one of core purposes of Title VII of the Civil Rights Act of 1964. Respondent Dr. Naiel Nassar, a former faculty member of the University of Texas Southwestern Medical Center (UTSW), alleges that his employer denied him a job in retaliation for a prior resignation letter alleging race discrimination in the workplace. Specifically, Nassar's resignation letter stated that his supervisor made derogatory comments about his Middle Eastern descent. Petitioner UTSW argues that Nassar needs to prove that retaliation was the sole motivating factor for the negative employment action. In contrast, Nassar argues that he need only show that retaliation was a motivating factor, but not necessarily the only one, for the negative employment action. A holding for UTSW may make it more difficult for victims of retaliation under Title VII to sue their employers, whereas a holding for Nassar may increase the costs borne by employers in defending against potentially meritless litigation.
Questions as Framed for the Court by the Parties
In Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 268-69 (1989), a plurality of this Court held that the discrimination provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), requires a plaintiff to prove only that discrimination was "a motivating factor" for an adverse employment action. In contrast, Gross v. FBL Financial Services, Inc., 557 U.S. 167, 179-80 (2009), held that the Age Discrimination in Employment Act of 1967 (ADEA), Pub. L. 90-202, 81 Stat. 602, requires proof that age was "the but-for cause" of an adverse employment action, such that a defendant is not liable if it would have taken the same action for other, non-discriminatory reasons. The courts of appeals have since divided 3-2 on whether Gross or Price Waterhouse establishes the general rule for other federal employment statutes, such as Title VII’s retaliation provision, that do not specifically authorize mixed-motive claims.
The question presented is:
Whether Title VII's retaliation provision and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).
For several years, Dr. Naiel Nassar was a faculty member of the University of Texas Southwestern Medical Center (UTSW). The university is affiliated with the nearby Parkland Hospital, and Nassar worked in Parkland’s HIV/AIDS clinic. Nassar is of Middle Eastern descent.
Shortly after starting to work for the clinic, Dr. Beth Levine, the doctor in charge of the entire clinic, began asking Dr. Phillip Keiser, Nassar's supervisor, about Nassar's work habits and billing practices. When talking with Keiser, Levine made a number of offensive comments, including remarks such as "Middle Easterners are lazy" and that the hospital had "hired another one," presumably referring to Nassar's race or ethnicity. Keiser told Nassar about these remarks and that Levine criticized the quality of Nassar's work and number of billing hours more than she did the rest of the doctors.
Despite the criticism, Levine suggested that Nassar seek promotion but gave various reasons why he would likely not be promoted. For example, Levine told Nassar that another doctor would block his promotion, although Nassar later found out that this doctor was not on the promotion committee and did not even oppose Nassar's promotion. Eventually, Nassar was offered promotion but sought work under a different supervisor. In trying to switch supervisors, Nassar talked at length about Levine with Dr. Gregory Fitz, the head of the Internal Medicine department at the hospital and Levine’s supervisor. According to the Fifth Circuit Court of Appeals, UTSW claimed that the relationship between the University of Texas and the Parkland Hospital prevented the hospital from filling staff physician positions with anyone other than UTSW faculty. In response, Nassar claimed there were doctors employed at the hospital who were not UTSW faculty. Parkland offered to hire Nassar to work directly in the clinic but only if he resigned from the University. On June 3, 2006, Nassar was officially offered a job in the Parkland clinic on Parkland's payroll, to start as of July 10, 2006. In the interim period, after being offered the job but before starting, Nassar resigned from the University. In his resignation letter, Nassar cited Dr. Levine's conduct, harassment, and discrimination as the primary reasons for his resignation.
Either before deciding whether to transfer Nassar or immediately after, Fitz blocked the hiring of Nassar. Nassar sued the UTSW alleging that this denial of transfer was actually a termination of his original position and that UTSW retaliated against him for claiming discrimination. At trial, the jury agreed with Nassar, but UTSW went to the Fifth Circuit Court to challenge the jury's decision. While affirming the finding of retaliation, the Fifth Circuit reversed the judgment regarding his termination. Dissatisfied with the affirmed decision of retaliation, UTSW appealed to the U.S. Supreme Court to decide whether a person in Nassar's position would have to show that retaliation was the controlling motive in denying employment.
The dispute in this case is whether a lawsuit alleging employment retaliation under Title VII of the Civil Rights Act requires proving that retaliation was the sole cause for a negative employment action. Although the U.S. Supreme Court has held that employment discrimination under Title VII requires showing only that discrimination was at least one factor for a negative employment decision, the Court has held in the context of age discrimination under the Age Discrimination in Employment Act (ADEA) that age discrimination must be the sole or "but-for" cause for the negative employment action. Petitioner University of Texas Southwestern Medical Center (UTSW) argues that the Court should impose a "but-for" causation requirement to prevent meritless lawsuits of retaliation under Title VII. In contrast, respondent Naiel Nassar argues that the retaliation provision of Title VII should be given the same mixed-motive treatment as the discrimination provision to protect employees from retaliation just as much as other forms of unlawful discrimination.
Balancing the Costs on Employers with Those on Employees
According to the American Council on Education and others (collectively, ACE) in support of UTSW, allowing a plaintiff who alleges retaliation under Title VII to show that retaliation was only one factor among others for a negative employment action would overly burden employers with a needlessly cumbersome legal framework. ACE argues that reducing the burden of proof for plaintiffs would subject employer institutions to costly discovery processes that may unearth material normally protected by academic freedom for defending against potentially meritless lawsuits. According to ACE, the rising costs of education make justifying litigation costs for universities difficult and so encourage schools to settle claims, regardless as to the likelihood that a plaintiff would win. Additionally, the U.S. Chamber of Commerce argues that holding for Nassar would impose extra costs on large corporations and retailers that attempted to cut costs by maintaining uniform, neutral policies in all their operations. A plaintiff in Nassar's position would have to show only that a supervisor had a retaliatory motive even if an employee was fired in violation of a neutral policy.
In contrast, the American-Arab Anti-Discrimination Committee notes that in increase in racism in America after 9/11 pervades workplaces nationwide, making protections against employment discrimination and retaliation all the more urgent. The United States argues that requiring a plaintiff to show retaliation as the sole cause for a negative employment action would undermine the core of Title VII of the Civil Rights Act. According to the United States, holding for UTSW would lead to victims of retaliation in the workplace becoming less likely to bring lawsuits while employers would be less likely to prevent retaliation. Additionally, the Foundation for Individual Rights in Education (Foundation) and the Alliance Defending Freedom (Alliance) together argue that requiring "but for" causation would chill speech and dissent on college campuses by allowing an employer institution to punish faculty or students for disagreeable speech but under the guise of neutral policies. To the Foundation and the Alliance, requiring "but for" causation would close the courts to victims of retaliation whereas allowing a plaintiff to show retaliation as just one factor among others protect victims from an employer's using a neutral policy as a cover for unlawful retaliation.
Complicating Discrimination Law
According to UTSW, allowing a plaintiff alleging retaliation under Title VII to show retaliation as just a factor (or, a mixed motive) and not the sole causal factor relies on a Supreme Court decision, Price Waterhouse v. Hopkins, that has been unwieldy in its applications. In support of UTSW, Michigan and 11 other states argue that applying a mixed-motive burden would confuse judges and juries with a cumbersome burden-shifting framework, contrary to the intent of Congress. To these 12 states, complicating the framework would enable the government to police the thoughts of individuals in supervisory positions instead of being limited to policing unlawful retaliatory employment actions. Additionally, DRI—The Voice of the Defense Bar argues that extending the mixed-motive burden from the discrimination context to the retaliation context would hurt the ability of employers to punish or fire employees who violated legitimate work rules because of a questionable comment by one supervisor.
In contrast, the United States argues that requiring a plaintiff to show retaliation as the sole cause for a negative employment action would complicate the legal framework prohibiting discriminatory actions at work. According to the United States, creating a different standard of proof for retaliation than for other forms of discrimination under Title VII would do more harm than good. Further, the Washington Lawyers Committee for Civil Rights and others (collectively, WLC) argue that aligning the burden of proof for retaliation under Title VII with age discrimination under the ADEA would still come at the cost of preventing consistency with discrimination under Title VII. To WLC, the simpler solution would be to make Title VII internally consistent rather than injecting the standard from another law into Title VII.
The U.S. Supreme Court will decide on what is necessary to show unlawful retaliation under Title VII of the Civil Rights Act. According to Petitioner University of Texas Southwestern Medical Center, Title VII requires a plaintiff to show that retaliation was the sole cause for a negative employment action. In contrast, Respondent Dr. Naiel Nassar argues that a plaintiff need only show that retaliation was a motivating factor in a negative employment action.
Interpreting Title VII
UTSW argues that Title VII requires a plaintiff to show retaliation as the sole cause for a negative employment action to show unlawful retaliation. UTSW bases this argument around the meaning of "because"; the statute prohibits retaliation "because" an employee objected to actions taken contrary to Title VII. UTSW draws upon the dictionary to argue that the word "because" signals exclusivity—that retaliation must be the only motivation for a negative employment action. Additionally, UTSW argues that, in other areas of law, the plaintiff must prove “but for” causation, or that the alleged harm would not have occurred “but for” the discriminatory motive. Finally, UTSW argues that the interpretation of the 1991 amendments to the Civil Rights Act applies only to discrimination, and not retaliation, claims. UTSW claims that when Congress intends to allow a plaintiff to bring a mixed-motive claim, it does so explicitly; thus, failure to expressly authorize a mixed-motive retaliation claims shows that Congress did not intend to allow plaintiffs to show that retaliation was just one of the motivating factors for a negative employment action.
In response, Nassar argues that 1991 amendments to Title VII show that Congress intended to make retaliatory employment actions unlawful. To Nassar, the relevant language states 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." Nassar points to prior case law to argue that retaliation is included in these protected characteristics because of its close relatedness to discrimination. Additionally, Nassar argues that plaintiffs frequently bring discrimination actions together with retaliation claims. Nassar claims that Congress was aware of this and thus would not have sought to establish different standards of causation for the two. To further support this interpretation, Nassar cites to the Equal Employment Opportunity Commission’s (EEOC’s) Compliance Manual that was modified after the 1991 amendments. Nassar notes that the document interpreted the amendments as applying to both discrimination and retaliation claims. Further, Nassar draws on administrative law to argue that this interpretation by the EEOC should be given Chevron deference, or great weight, under Skidmore v. Swift & Co.
Burden Shifting Under Applicable Case Law
UTSW argues that Gross v. FBL Financial Services should provide the proper interpretation of the requirements of showing retaliation under Title VII of the Civil Rights Act. Gross dealt with a provision of the Age Discrimination in Employment Act (ADEA) which stated that “[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” UTSW argues that Congress modeled the ADEA language after that found in Title VII; because of this, the Supreme Court should construe the two provisions identically. UTSW reads the Court’s interpretation of the ADEA in Gross to hold that a plaintiff must show that retaliation was the sole reason for negative employment action; therefore, because of the similarity in statutes between the ADEA and Title VII, the same requirements should govern retaliation under Title VII. Additionally, UTSW suggests that a distinguishing between age retaliation and race discrimination would create a judicial mess for courts to apply. UTSW argues that Gross avoids this problem by enforcing a uniform “but for” standard of causation. Additionally, UTSW bemoans the possibility of frivolous, and needlessly expensive, litigation that would result from a mixed-motive standard in which any suspicion of discrimination could yield a huge lawsuit. According to UTSW, Gross requires Nassar to show that retaliation was the sole motivating factor behind Parkland’s decision to deny him the position.
In contrast, Nassar argues that if the 1991 amendments of the Civil Rights Act do not resolve the merits of the case, then the relevant framework with which to evaluate the case is determined by Price Waterhouse v. Hopkins. According to Nassar, Price Waterhouse holds that where a plaintiff can show that retaliation was at least one motivating factor in a negative employment action, then the burden of proof shifts to the defendant to prove that the negative action would have occurred absent retaliation. Nassar notes that Price Waterhouse, which occurred shortly before the 1991 amendments, dealt with a similar Title VII provision. Nassar provides a list of decisions from many different circuit courts that have continued to enforce the burden-shifting regime. Nassar urges the Supreme Court to uphold this reading for considerations of stability and predictability. Nassar contends that Congress had the opportunity to alter the burden-shifting scheme that was the law due to Price Waterhouse; the failure of Congress to do so therefore show their complicity with the holding of that case. Finally, Nassar disagrees with UTSW that Gross governs the outcome of this case. Nassar argues that Gross dealt with the ADEA, and judicial interpretations of that case were not meant to apply to Title VII litigation.
This case will determine what employees must prove in Title VII retaliation actions. Whereas the University of Texas Southwestern Medical Center (UTSW) argues that an employee will have to show that retaliation was the sole motivating factor in an employer's negative employment action, Dr. Naiel Nassar argues that an employee should have to prove only that retaliation was a motivating factor, but not necessarily the only one. A holding for UTSW may discourage victims of retaliation from suing their employers due to the difficulty in proving intent, whereas a holding for Nassar may impose more costs on employers to shield themselves from liability.
- Deborah Hammonds, Supreme Court to determine the availability of "mixed motive" claim in Title VII case, Employment Law Daily, Jan. 24, 2013.
- Michael P. Maslanka, But-for and mixed-motive causation squaring off in U.S. Supreme Court case Nassar v. UT Southwestern Medical Center, that was tried in Dallas, Texas Lawyer- Work Matters: A Blog on Employ and Labor Law, Jan. 23, 2013.