Last week, the United States Supreme Court agreed to review a decision of the U.S. Court of Appeals for the Fifth Circuit that should help to resolve a circuit split on an imporant issue: whether the “mixed motive” analysis under Title VII discrimination claims should be applied to retaliation claims under Title VII, or whether the “but for” causation model enunciated by the Supreme Court as to ADEA cases should control. (In California, the “mixed motive” analysis applies to all state law employment discrimination claims under the Fair Employment and Housing Act [“FEHA”], which covers all protected classifications.) The case is Nassar v. University of Texas Southwestern Medical Center.
The First, Sixth and Seventh Circuits have used the “but for” model, requiring that the plaintiff prove that the employer would not have taken the adverse employment action but for a retaliatory motive. Under the “but for” model of proof, it is not enough for a plaintiff to prove that retaliation was one of several of the employer’s motivations for taking an adverse action.
The Fifth and Eleventh Circuits have followed the “mixed motive” analysis first enunciated by the Supreme Court in Price Waterhouse v. Hopkins in 1989 and then codified under the discrimination sections of Title VII in the Civil Rights Act of 1991. Under the mixed motive test, an improper, discriminatory animus need only be one of several motivating reasons for the adverse employment action—in other words, even if it is proven that, in addition to any improper motive, there were legitimate, non-discriminatory reasons for the action, such legitimate reasons have limited effect: although a plaintiff-employee could not be awarded damages, he or she could obtain equitable relief, including job reinstatement, and attorneys’ fees. Surprisingly, the Ninth Circuit has not yet weighed in on the “mixed motive” versus “but for” debate.
On this issue, it is difficult to predict how the Supreme Court will rule. While it has been sharply divided on “hot button” issues in recent years, the Supreme Court often surprises pundits with consensus when it comes to issues of statutory construction under federal anti-discrimination laws.
Stay tuned. The Roberts’ Court’s decision here could significant effect employment litigation under federal law and have ripple effects on similar state anti-discrimination laws.