The Supreme Court has agreed to hear a case that could answer a crucial question when an employee who is a member of a protected class alleges retaliation: Must he prove his protected status was the sole motive for retaliation, or can it be just one of many possible reasons?
The case—University of Texas Southwestern Medical Center v. Nassar—involves a medical professor and physician who claims his employer retaliated against him after he complained that another professor discriminated against him.
THE LAW: Title VII of the Civil Rights Act prohibits discrimination based on race, creed, color, religion, sex, ethnicity and national origin. Employees may bring retaliation claims under Title VII if they feel their employer retaliated against them for engaging in protected activity. Among other things, protected activity includes filing a complaint.
While the Supreme Court has ruled on many retaliation cases over the years, a crucial question has remained unanswered: Must an employee prove that membership in a protected class was the only motive the employer had for retaliating? Or is the employer on the hook if protected class membership is only one of several motives for retaliation?
WHAT’S NEW: In University of Texas Southwestern Medical Center v. Nassar, a Muslim physician at the University of Texas Southwestern Medical Center, Dr. Nassar, charged that his supervisor scrutinized his work and billing practices more closely than other doctors. He also documented discriminatory comments the supervisor had allegedly made about Muslims.
As a result, Nassar sought to obtain a staff position with Parkland Hospital, which has a close relationship with the University of Texas Southwestern Medical Center. After receiving a written job offer, Nassar sent a resignation letter attributing his departure to “the continuing harassment and discrimination against me by [the supervisor]”. Word of the letter quickly spread at both the university hospital and Parkland.
A few days later, Parkland withdrew its employment offer, leaving Nassar unemployed. He sued, alleging discrimination and retaliation.
After a trial, the jury decided Nassar had been the victim of discrimination. It awarded him $436,168 in back pay and more than $3 million in compensatory damages. An appeals court vacated part of the verdict.
In the meantime, the university appealed to the U.S. Supreme Court, arguing Nassar failed to meet the burden of proof for a retaliation claim.
The university is asking the Supreme Court to determine the burden of proof employees must meet to prove retaliation. A decision in the case is expected this spring.
Varying burdens
Two Supreme Court decisions offer two different views on the burdens employees must meet.
In Price Waterhouse v. Hopkins, an employee claimed she was denied a promotion because of her gender. The High Court ruled she only needed to prove that sex discrimination was a “motivating factor” in the adverse employment decision. That standard lets an employer overcome a retaliation claim by showing it would have made the same decision even if the employee were not part of a protected class.
Addressing the same issue in the context of the Age Discrimination in Employment Act (ADEA), the Court came to a different conclusion. In Gross v. FBL Financial Services, Inc., it decided employees alleging age discrimination had to show by a preponderance of the evidence that age was the “but for” cause of an adverse employment decision. That is, if not for the employee’s age, the employer wouldn’t have made the same decision.
As amended in 1991, Title VII permits mixed-motive suits when proving discrimination, but the ADEA wasn’t amended. The Supreme Court noted this in the Gross decision.
Both laws are silent on the burden for retaliation claims. Three federal appeals court circuits have ruled that employees must meet the “but for” standard to prove retaliation on Title VII claims; two circuits have allowed employees to prove retaliation using a mixed-motive claim.
IMPLICATIONS: Employers must be aware of possible retaliation any time a discrimination issue is raised. Regardless of the standard the Supreme Court upholds, it’s usually easier for employees to prove retaliation than any underlying discrimination claim.
Train managers to avoid the “circle the wagons” mentality that often leads to retaliation. The key is handling discrimination and harassment complaints professionally. They should know to follow two steps:
- Rely on your usual processes for investigating the complaint. Conduct the investigation professionally and quickly. Deviating from your written policy will look suspicious to a jury.
- Let all parties involved know that they are expected to tell the truth about what they know—and that they will not suffer retaliation for doing so.
Make sure everyone knows that you take discrimination and harassment charges seriously—but that until they are proven, the charges are simply allegations and not the basis for any discipline.
