Retaliation Claims Upheld in Supreme Court

Title VII of the Civil Rights Act of 1964 was put in place to protect employees from discrimination based on national origin, religion, race, color, and sex; it also protects employees from retaliatory actions by their employer for any Title VII claims the employee may make against their employer. Over the years, courts have had varying opinions on what proof was necessary to support a retaliation claim by an employee. In the case of retaliation claims, some courts feel the plaintiff need only prove that the retaliatory action was a ‘motivating factor’ in the opposed action, where other courts feel that the plaintiff should prove the retaliatory action was the ‘but-for’ cause of the opposed action. In the case of Nassar v. University of Texas Southwestern Medical Center, the US Supreme Court reinforced that retaliation claims are subject to ‘but-for’ causation.

Nassar v. University of Texas Southwestern Medical Center

The retaliation for Nassar begins at the University of Texas Southwestern Medical Center where Dr. Nassar served as a university faculty member. Dr. Nassar also served as a Parkland Memorial Hospital staff physician through an agreement between the school and hospital that university faculty members would fill vacant staff positions within the hospital. Dr. Nassar, of Middle Eastern descent, felt that his supervisor at the university, Dr. Levine, showed bias secondary to his ethnicity and religion and presented his complaints to Dr. Levine’s supervisor, Dr. Fitz. An arrangement was made where Dr. Nassar could continue to work at the hospital while no longer being a member of the university faculty. At a later date, Dr. Nassar chose to resign, sending a letter to Dr. Fitz and others communicating his reason for leaving, which was secondary to Dr. Levine’s harassment. Dr. Fitz subsequently protested the hospital’s job arrangement with Dr. Nassar and consequently, the hospital position was withdrawn.

Retaliation Claims

In Nassar’s retaliation case, Dr. Nassar claimed two Title VII violations: 1)Dr. Nassar claimed that his supervisor’s religiously- and racially-motivated harassment resulted in his constructive discharge from the university (a violation of the antidiscrimination provision); 2)Dr. Nassar alleged retaliatory actions by Dr. Fitz because of his complaints against Dr. Levine (resulting in the loss of his job opportunity).

Using the "But For" Standard of Causation

The jury found in favor of Nassar. The Fifth Circuit affirmed finding that Nassar had demonstrated that retaliation was a "motivating factor" of the university’s actions, which had caused Nassar to lose his employment offer with the hospital. The Supreme Court reversed the Fifth Circuit’s decision and held that Title VII retaliation claims must be proven using a "but for" standard of causation rather than the less burdensome "motivating factor" standard. The Court focused on the language of Title VII’s anti-retaliation provision, which "makes it unlawful for an employer to take adverse employment action ‘because of’ certain criteria."

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