Supreme Court Makes It Harder to Sue Employers for Retaliation

This report relates to 1 case(s)

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    University of Texas Southwestern Medical Center v Nassar (0 other reports)

Author: Beth P. Zoller, XpertHR Legal Editor

In University of Texas Southwestern Medical Center v Nassar, +133 S. Ct. 2517 (2013), the Supreme Court considered the standard of proof needed for an employee to win a retaliation lawsuit under Title VII of the Civil Rights Act against an employer. The Court had to decide if an employee needs to show the employer would not have taken adverse employment action but for an unlawful motive, or if it is enough for an employee to show that the unlawful motive was merely one of multiple reasons for taking the adverse action (under the motivating factor or mixed-motive standard).

By way of background, Title VII allows an employee to prevail in a discrimination lawsuit by showing that his or her membership in a protected class was a motivating factor in the employer's adverse employment decision (i.e., a firing, demotion or denial of employment). As such, an employee may prevail by showing that the employer had both legitimate and illegal motives for an adverse employment decision. However, the statute is silent as to the standard of proof required for retaliation claims.

In this case, the Court held that the higher, "but for" standard applies in retaliation cases brought under Title VII. Therefore, it is not enough to show that an improper motive was one of several factors in the employer's decision.

Key Points

  • To establish a retaliation claim under Title VII, an employee must show that the employer would not have taken an adverse employment action, but-for an improper motive.
  • This but-for standard is a higher standard of proof than other claims of status-based discrimination under Title VII which only require an employee to show that his or her membership in a protected class was a "motivating factor" in an adverse employment practice.


In the case, Dr. Naiel Nassar claimed that he was retaliated against and denied a position at Parkland Memorial Hospital, a medical clinic affiliated with University of Texas Southwestern Medical Center, after the university allegedly badmouthed him to Parkland. Nassar also claimed Texas Southwestern forced him to resign from his faculty position after he complained about discrimination and harassment by his supervisor.

Following a trial, a federal jury awarded Nassar nearly $3.5 million. The 5th Circuit reduced the verdict, but affirmed the jury's finding that Nassar was subject to racial harassment based on his Middle Eastern descent. The 5th Circuit also affirmed the jury's conclusion that that Texas Southwestern retaliated against Nassar based on his racial harassment complaints and prevented him from obtaining the Parkland position. In doing so, the 5th Circuit concluded that employees suing for retaliation under Title VII could proceed on a mixed-motive theory and only needed to prove that retaliation was one of the factors in an adverse employment decision.

Texas Southwestern appealed claiming that to prevail on his retaliation claim, Nassar should be required to establish that his losing out on the Parkland position was the exclusive result of an improper motive rather than an improper motive being one of possibly several reasons Nassar did not obtain the position. Because a number of other circuit courts were in conflict, the Supreme Court granted review to address the standard of proof needed to prove retaliation under Title VII.


The Supreme Court held that retaliation claims filed under Title VII are subject to a higher standard of proof than discrimination claims and that an employee can only prevail in a retaliation case by showing that the employer would not have acted but for an improper motive. An employer will not be liable for retaliation if it can show that it would have taken the same adverse action for other legitimate and nondiscriminatory reasons.

The Court specifically noted that Title VII, by its language, only referenced the use of the mixed-motive standard with respect to five forms of status-based discrimination (i.e., race, sex, color, religion and national origin) and not retaliation. From this, the majority discerned a Congressional intent to limit the standard to exclude retaliation. The Court reasoned that if Congress intended for the motivating factor standard to be used in retaliation claims, it would have said so in the statute.

As a result, the Court determined that Nassar needed to show the job offer would not have been withdrawn but for the employer's alleged intent to retaliate. In reaching this conclusion, it expressed concern that a lower standard of proof may lead to frivolous retaliation claims as well as drain resources from employers, agencies and courts to combat workplace harassment. Further, the Court specifically rejected previous Equal Employment Opportunity Commission (EEOC) guidance that had adopted the motivating factor standard for retaliation claims under Title VII.


The Supreme Court's decision will have a direct impact on employers as it is likely to reduce the number of retaliation claims employers face because employees now have a higher burden of proof in order to prevail on a retaliation claim.

Since an employee must now show that an impermissible retaliatory motive was the reason for the adverse employment action, and not one reason among many, it may be easier for employers to dismiss frivolous retaliation claims before trial. This is critical because retaliation claims are among the most frequently filed claims with the EEOC.

Despite this decision, employers still must be proactive and take all necessary steps to minimize the potential for retaliation claims by implementing and enforcing a strict nonretaliation policy and providing supervisors and employees with anti-retaliation training. Further, it is critical for employers to allow employees to report retaliation through multiple channels as well as promptly follow up on all complaints of retaliation with a thorough investigation and discipline when necessary.

Also, employers should have a legitimate business reason for taking any adverse employment action against an employee who has engaged in protected activity. Finally, employers should be aware that this ruling only applies to Title VII retaliation claims and not those brought under state and local anti-retaliation laws.

Additional Resources

How to Prevent Retaliation in the Workplace

Retaliation - Supervisor Briefing

Retaliation Policy

Employee Management > EEO - Retaliation

EEOC Statistics Show Retaliation Still Top Workplace Concern