U.S. Supreme Court restricts retaliation claims under Title VII by requiring “but-for” proof of action
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Abstract: In a 5-4 decision, the U.S. Supreme Court vacated the U.S. Court of Appeals for the Fifth Circuit’s decision invoking the use of a “motivating-factor” standard for determining employer liability in retaliation claims under Title VII. Determining that the proper standard in retaliation claims was the “but-for” test, the Court remanded the case to the Fifth Circuit for further proceedings consistent with the Court’s opinion.
Justice Kennedy, joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito delivered the Court’s opinion. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined.
The issue before the Court was the causation standard for assessing an employer’s liability under Title VII when an employee alleges that he/she was retaliated against by the employer because the employee opposed a discriminatory practice or filed a complaint of discrimination. This type of claim is referred to as a “retaliation” charge, although the term “retaliation” is not used in Title VII. It compliments the other category of claims, which are claims of discrimination based on the individual’s race, color, religion, sex, or national origin. The Court termed the latter category “status-based” claims.
For status-based discrimination claims, the majority held that liability is established if the plaintiff shows that a discriminatory motive was one of the employer’s reasons for taking adverse action, even if the employer had other, lawful motives. This category of causation is referred to as the “motivating-factor” test (and also as the “mixed-motive” test), and contrasts with “but-for” causation. But-for causation requires proof that the adverse action would not have occurred in the absence of an unlawful motive of the employer. The motivating factor standard is a more lenient standard of causation than the but-for test, making it easier for plaintiffs to win cases against employers.
The majority rejected the use of the motivating factor test, however, in retaliation claims. It concluded that the proper standard for determining causation in retaliation cases is the but-for test. The majority’s opinion rested on statutory interpretation, bolstered by policy considerations of “central importance.”
The majority relied heavily on 1991 Congressional amendments to Title VII. Those amendments expressly incorporated the motivating factor test as the standard for determining if an employer committed a status-based category of discrimination. Congress did not add the motivating factor causation standard to retaliation claims. The majority concluded that the amendments showed clear Congressional intent to hold employers liable for status-based discrimination if an unlawful intent was a motivating factor, even if accompanied by legitimate factors, but not so for alleged acts of retaliation. The majority determined that since Congress did not incorporate the motivating factor into the statutory elements of a retaliation claim, the traditional but-for causation standard applies.
The majority, in Part B of its opinion, cited important policy purposes served by its conclusion. Looking to serve the “fair and responsible allocation of resources in the judicial and litigation systems,” the majority emphasized the costly impact a contrary ruling would have on employers. The National School Boards Association filed an Amicus Curiae brief to illuminate the serious burden that the motivating factor standard would place on school boards as employers, especially in an era of tight budgets and performance imperatives. The majority cited statistics showing a dramatic rise in retaliation claims, evidence which NSBA had provided in its brief. For example, retaliation claims now account for more claims than every type of status-based discrimination except race. The majority noted how an employee could strategically use the motivating factor test by filing a charge of discrimination, in anticipation of an adverse employment action, and then sue the employer for retaliation when the adverse action is taken. NSBA’s brief cited examples of how this strategy would hamper school improvement reforms and expose school boards to expensive defense costs. The majority cited to NSBA’s brief in summarizing the issue: “It would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent. Yet there would be a significant risk of that consequence if respondent’s position were adopted here.”
The dissent argued that Title VII’s restrictions on retaliation are integrally bound to the status-based protections, necessarily so for a workplace anti-discrimination scheme to be truly effective, and must be judged by the same causation standards.
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