Number 37: The Supreme Court Raises The Bar On Proving Retaliation
Throughout this series, we have discussed how common retaliation claims have become and how challenging the courts have found it to define “causation” in the context of Title VII cases. Those two trends intersected recently when the U.S. Supreme Court was called upon to decide what level of proof was required for an employee to prove that an employer retaliated against him.
The facts in University of Texas Southwestern Medical Center v. Nassar were straightforward. Dr. Nassar, a professor of medicine at the University of Texas Southwestern Medical Center, sued the University for Title VII discrimination and retaliation. On the retaliation claim, he maintained that he complained to senior management about derogatory comments his supervisor had made about his race. Later, the hospital withdrew its job offer to Dr. Nassar on the suggestion of the same senior management employee to whom he had complained.
The case wound its way to the Supreme Court, which was called upon to decide what proof was needed for Dr. Nassar to prove retaliation. Did he need to show that his complaint was a “but for” cause (i.e., the cause) of the decision to fire him or merely a “motivating factor” (i.e., one of many factors)?
In a welcome decision for employers, the Supreme Court found that employees would be held to the higher standard of proof, namely that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Why is that so significant? Prior to Nassar, the Supreme Court had acknowledged lower court decisions (10th and 7th Circuit decisions) which stood for the proposition that very close temporal proximity — without more — between the employee’s protected activity and the employer’s adverse employment action could prove causation. Post-Nassar, those cases and that theory are called into question.
This “but for” causation requirement, however, does not completely eliminate or reduce the employer’s need to guard against retaliation claims through sound policies, prompt investigation and response, and supervisory training. It just gives employers a better chance at obtaining summary judgment, at least for Title VII retaliation (but not discrimination) claims. And, of course, the Nassar decision has far lesser impact on California employers who are more likely to face claims brought under California’s Fair Employment & Housing Act (the “FEHA”) and not under Title VII. But California employers did receive similar good news in Harris v. City of Santa Monica, 56 Cal. 4th 203 (2013), in which the California Supreme Court held, in a mixed motive case, that plaintiffs alleging unlawful discrimination under the FEHA need to prove that illegal discrimination was a “substantial factor” motivating the adverse employment action (rather than it being just “a” motivating factor for the adverse employment action). The “substantial factor” standard more effectively ensures that liability will not be imposed based on mere thoughts, feelings, or passing statements unrelated to the disputed employment decision. While the Harris decision is silent regarding its applicability to FEHA retaliation claims, the same term “because” appears in both sections of FEHA addressing discrimination and retaliation, respectively, and previous California cases analogize the two sections, it is likely that the “substantial factor” test will be found to be applicable to FEHA retaliation claims as well (and, in fact, Harris is cited in the CACI Jury Instructions for FEHA retaliation (CACI 2505) as well as for FEHA discrimination claims).