The Supreme Court Tackles Retaliation Cases

Perhaps the most common complaint I hear from employees who call my office is that they feel they have been retaliated against by their employer. Thanks to a recent decision by the United States Supreme Court, those cases are now more difficult for employees to prove.

In University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), Naiel Nassar was employed as an assistant professor at the University of Texas Southwestern Medical Center and as a physician at the University’s hospital. The University hired a new Chief of Infectious Disease Medicine, an individual Dr. Nassar alleged was biased against him on account of his religion and ethnic heritage. He claimed he was discriminated against by undeserved scrutiny of his billing practices and productivity and by comments that “Middle Easterners are lazy.” Dr. Nassar met with the University on several occasions regarding the alleged harassment and, ultimately, he resigned from his teaching position after the University suggested in might be possible for Dr. Nassar to continue to work at the University’s hospital without holding a teaching position. Dr. Nassar’s resignation came by way of a letter in which he stated that the reason for his departure was harassment by the Chief of Infectious Disease Medicine that “stems from . . . religious, racial and cultural bias against Arabs and Muslims.” After reading that letter, the University official with whom Dr. Nassar had been meeting stated that the Chief of Infectious Disease Medicine had been “publicly humiliated by th[e] letter” and that it was “very important that she be publicly exonerated.” Thereafter, the University hospital withdrew Dr. Nassar’s job offer.

Dr. Nassar filed suit in the United States District Court for the Northern District of Texas alleging racial and religious harassment had resulted in his constructive discharge from the University and retaliation had led to the withdrawal of the job offer by the University hospital. A jury found for Dr. Nassar on both claims and awarded him over $400,000 in back pay and more than $3 million in compensatory damages. The District Court reduced the compensatory damages award to $300,000, which is the statutory cap for claims like the ones brought by Dr. Nassar.

On appeal, the United States Court of Appeals for the Fifth Circuit found that Dr. Nassar had submitted insufficient evidence in support of his constructive-discharge claim, so it vacated that portion of the jury’s verdict. However, the Fifth Circuit affirmed the verdict on the retaliation claim because it believed the evidence supported a finding that the University was motivated, at least in part, to retaliate against Dr. Nassar for his complaints about the Chief of Infectious Disease Medicine.

The United States Supreme Court agreed to hear the case and its ruling substantially raised the bar for employees seeking to prove retaliation claims. The Supreme Court held that an employee making a retaliation claim under Title VII of the Civil Rights Act must establish that his or her protected activity was a “but-for” cause of the alleged adverse action by the employer as opposed to the more lenient “motivating-factor” standard adopted by many courts, the Fifth Circuit in Dr. Nassar’s case.

The difference between these two standards cannot be underemphasized. Under a “motivating-factor” standard, an employee must simple prove that retaliation was one of the factors, but not the only factor, in the action taken against him by his employer. For example, if an employee complains about his co-workers mocking his Muslim faith and the employer decides to fire the employee for “performance issues” and “bothering me with that religious crap,” the employee could prove that retaliation for his complaint was a factor that motivated his termination, albeit not the only factor.

Under a “but-for” standard, the employee must prove that the employer would not have taken the adverse employment action but for a design to retaliate. So in the example above, the inclusion of “performance issues” in the termination decision would likely defeat the claim because the employee would be hard-pressed to establish that the retaliation alone caused his employment to be terminated. Because employers can almost always come up with some sort of lawful reason to justify a termination, even if it is weak or created after the fact, employees must now hope that judges and jurors reject these false justifications in order to win their retaliation case.

It is worth noting that Nassar only applies to retaliation cases so claims of discrimination and harassment are not impacted by the decision. However, the imposition of a much stricter standard on retaliation cases is yet another blow to Title VII’s ability to protect workers from employer misconduct.