Court Makes It Harder for Employees to Prove Retaliation
If you file a discrimination claim against your employer and are retaliated against for your actions, how do you prove the reason behind the retaliation? In 2013, after a decision by the U.S. Supreme Court, it has become more difficult to prove retaliation for employees.
Dr. Naiel Nassar was a physician with the University of Texas Southwestern Medical Center. He was offered the chance to leave his faculty position and retain a job as a physician at its partner hopsital, Parkland Memorial Hospital. When a new director was hired to oversee the clinic in which he worked, Nassar felt she was biased against him because of his Middle Eastern heritage. After complaining about her to her supervisor, Nassar was in turn denied the job offer at the hospital.
A jury found in favor of Nassar, but in the Court of Appeals, the University argued that “Nassar should have been forced to prove retaliation was the sole reason for the withdrawal of the staff position job at the hospital.” Once the case made it to the Supreme Court, the Justices ruled 5-4 in favor of the University.
At a first glance of the case, it would appear that the University was in clear violation of Title VII of the Civil Rights Act of 1964, so how did it get around the issue? According to the Supreme Court, it comes down to “but-for causation.”
According to the definition of but-for causation, “the defendant's conduct is not the cause of an injury to the plaintiff, unless that injury would have occurred except for (“but for”) the defendant's conduct.” In the Nassar case, the Court refused to allow the usual “motivating factor” method of demonstrating that retaliation in part led to the withdrawn job offer. Also, the Justices held that “mixed motive theory is not applicable to retaliation claims.” If there was any other reason for Nassar's dismissal, no matter how miniscule, retaliation could not stand.
The Supreme Court decision has made it more difficult for employees to prove retaliation in the workplace, which could affect the safety and security of thousands of American jobs. While they can continue to file claims for discrimination, the Nassar holding diminishes the ability of plaintiffs to assert retaliation claims successfully. Furthermore, the new causation standard runs the risk of confusing judges, juries and the parties alike.
As retaliation claims with the Equal Employment Opportunity Commission continue to grow – up 66 percent over the past 10 years – it clearly shows employees are being punished for reporting instances of discrimination. However, with the Court's recent decision in Nassar, it appears that the rise in retaliation is no longer considered the serious problem it is in American workplaces.