The United States Supreme Court in June decided two cases believed to be very “employer-friendly”. I mentioned the first, Vance v. Ball State University 133 S.Ct. 2434 (2013) here in a recent Emplawyerologist post. The other one, University of Texas Southwestern Medical Center v. Nassar 133 S.Ct. 2517 (2013) dealt with the level of proof (specifically the causation standard) required for an employee to be able to bring and sustain a retaliation claim. Since we have focused on workplace retaliation these last few weeks, discussing this case seems a logical way to wrap up this subject for now. The exact question: Need the employee’s claim only show that retaliation was a motivating factor in the adverse action taken against him/her (as all other anti-discrimination provisions in Title VII of the Civil Rights Act of 1964 do) or must s/he show that “but for” retaliatory motive, the employer likely would not have taken the adverse action? The US Supreme Court decided that the employee must meet the more stringent, “but for” standard. How did the US Supreme Court arrive at its decision and what does it mean for employers? More on that after the jump…Let’s first get the basic facts: Naiel Nassar, a physician of Middle Eastern, descent, was a faculty member of the University, a physician at its affiliated hospital, Parkland Memorial Hospital and an Associate Medical Director of one of the hospital’s clinics from 1995 to 2006. Nassar was an infectious disease specialist, who focused on HIV/AIDS treatment. Dr. Beth Levine, became his supervisor in 2004. Nassar claimed that Dr. Levine, made racial/ethnic slurs about him and at least one other doctor of similar descent, and otherwise subjected him and his work to heightened scrutiny because he was Muslim and of Middle Eastern descent. Nassar negotiated a staff physician job at the hospital and resigned his faculty position, which would have meant he would no longer be under Dr. Levine’s supervision. In his resignation letter to Dr. Levine’s supervisor Dr. Fitz, , Dr. Nassar cited what he believed to be Dr. Levine’s discriminatory behavior as the “primary reason” for his resignation. Dr. Fitz was “shocked” by the letter, claiming that Dr. Levine was “publicly humiliated” and felt she should be “publicly exonerated”. When Dr. Fitz heard that Dr. Nassar had been offered a staff physician position at the hospital, he opposed the appointment on the grounds that pursuant to Parkland Memorial’s affiliation agreement with the University, staff physicians also had to be on the faculty. The hospital then withdrew the offer. Nassar filed an EEOC charge, alleging racial discrimination based on Dr. Levine’s conduct and retaliation by Dr. Fitz for having complained that Dr. Levine discriminated against him in violation of Title VII of the Civil Rights Act of 1964. At trial, Nassar lost on the discrimination claim, but won the retaliation claim. The University appealed, first to the 5th Circuit Court of appeals and then to the US Supreme Court.
The US Supreme Court in Price Waterhouse v Hopkins 490 US 228 (1998) addressed the standard for proving causation in cases involving discrimination based on race, color, religion, sex and national origin (“status discrimination”). The Court ruled that an employee needed to show that his/her membership in a protected class was a “motivating” or “substantial” factor in the employer’s adverse action or decision. The employer could still avoid liability, however, if it could prove that it would have taken the same employment action regardless of any discrimination. Congress partially overruled this decision by passing the Civil Rights Act of 1991, which states a showing that the employee’s membership of a protected class was a motivating factor in an employer’s adverse decision could establish an unfair employment practice warranting an injunction, attorneys’ fees and costs, even if the employer would have taken the same action regardless of discrimination.
Since the 1991 Act only amended the status based discrimination clauses of Title the issue before the Supreme Court in this case was whether that same causation standard applied in cases of discrimination against an employee based on his or her opposition to or complaint of employment discrimination (retaliation). The US Supreme Court refused to apply the 1991 Act provisions to retaliation claims under Title VII. The court’s reasoning was as follows: Courts should, whenever possible, look to the plain meaning of statutes. Congress in 1991 amended those Title VII provisions that dealt with status based discrimination to specifically adopt the “motivating factor” standard. Therefore someone suffering an adverse action at work “because of” their membership in a protected class can prove this element by showing that discrimination was a motivating factor. Congress could have made the same amendments to the anti-retaliation provisions of Title VII but did not do so. Therefore, the majority reasoned, Congress must have intended that retaliation claims be subjected to a “but for” standard. The majority opinion also applied general tort law principles that essentially hold that to be entitled to relief based on someone else’s wrongful act, a plaintiff must prove that “but for” the wrongdoer’s act, the plaintiff would not have suffered the harm alleged. The majority also compared Nassar to a recent case decided under the Age Discrimination in Employment Act, which essentially adopted the “but for” standard. Finally, the majority opinion also cited a concern that the “motivating factor” standard would make it too easy for employees to bring frivolous retaliation claims.
The majority’s reasoning in this case is unfortunately very flawed. Justice Ruth Bader Ginsburg, writing for the dissent, pointed out those flaws. Here is her reasoning: The majority ignores established Supreme Court precedent, which specifically acknowledged that Title VII’s statutory protections must include the anti-retaliation provisions in order to effectuate the purpose of preventing and remedying discrimination. The majority opinion clearly ignores the intent of Title VII, as evidenced by its legislative history. Justice Ginsburg cited a previous version of the anti-retaliation provisions that required employees to prove they suffered an adverse act solely because of their complaint about or opposition to discriminatory behavior. Congress rejected that version of the law. The majority’s reading of the “plain meaning” of the 1991 Act is at best strained. As for the majority’s application of traditional tort law principles, there is no indication whatsoever in either Title VII’s or the 1991 Amendment’s legislative history that Congress had any intention of embracing traditional tort law concepts. (Even tort law allows for apportioning negligence, which in turn can limit recovery based on the extent to which someone negligently or intentionally caused the harm in question.) Finally, Justice Ginsburg points out the likely outcome of two standards of proof for discrimination and retaliation claims burdening trial judges and confusing jurors, and calls on Congress to restore the retaliation provisions to the same standard of proof as that required for status-based discrimination claims.
When all is said and done, what does this case mean for employers? For now, employers may have caught a break. Why “for now” and why “may have”? First, just as Congress overrode the Supreme Court’s ruling in Price Waterhouse, it could do the same with respect to Nassar, as Justice Ginsburg called upon Congress to do in her dissenting opinion. Second, this case applies only to retaliation claims brought under Title VII. Retaliation cases brought pursuant to other statutes, such as the ADA, GINA, FMLA, etc are not impacted by this ruling — unless the Supreme Court in a subsequent case extends this ruling to apply to cases involving any of those other statutes. Third, while employers can argue that another reason existed for the alleged retaliatory action, employers with insufficient proof will still be liable. In other words, while the ruling does require the employee alleging retaliation under Title VII to clear more hurdles, by no means does it give the employer a “slam dunk”. Employers who interpret this case as such do so at their peril. Moreover, it is not uncommon for employees to file suit even when they do not have a strong case because they are angry for perceived mistreatment. Even when an employer ultimately gets a case against it dismissed, it still has to spend significant, if not exorbitant amounts of money in legal fees. So, just because Nassar appears at this time to give employers a “leg up” on employees in this area, and made it harder for employees to win a retaliation claim, don’t rely on it too much, and don’t relax those employment practices so fast!
So that’s a “wrap” for now! Next we make a short return to the subject of background checks, but from the perspective of a background screening company owner, who performs the checks. Our guest blogger, Brandy Bishop, owner of i-Verified Background Screening, will share some of her stories and thoughts on the obstacles she encounters and what you, the employers can do to help expedite the process. So log back on next week for a different perspective!