Supreme Court Case Could Raise Bar for Employees Seeking to Prove Retaliation

Author: David B. Weisenfeld, XpertHR Legal Editor

Washington, D.C.--The Supreme Court heard oral arguments April 24 in a case with potentially big ramifications for employer liability in retaliation lawsuits.

In University of Texas Southwestern Medical Center v. Nassar, No. 12-484, the Court is being asked to decide if an employee can sue his former employer under Title VII's retaliation provision by showing illegal bias was a motivating factor for taking adverse employment action against him, or whether he must prove the employer would not have acted "but for" the improper motive.

A $3.5 million jury verdict hangs in the balance. But the possible impact is much broader and goes beyond Title VII. How the justices ultimately resolve the issue could affect cases under the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and other employment laws.

Dr. Naiel Nassar claims his former employer forced him to quit his job in retaliation for his racial discrimination complaint and later caused a potential employer to withdraw a job offer. The former employer counters that Nassar can win only by showing retaliation was the sole reason he lost out on the job, something it says he failed to do.

The Court was deeply divided during the arguments as to the standard of proof that should apply in such cases. Justices Elena Kagan, Ruth Bader Ginsburg, Sonia Sotomayor and Stephen Breyer all appeared skeptical of the employer's argument that Title VII's retaliation ban requires employees to show that the employer acted with a single motive of illegal bias.

Title VII permits employees to prevail in a discrimination claim if the employer had both legitimate and illegal motives for the adverse decision (also known as the mixed motive standard). However, it is silent as to retaliation. Nonetheless, Justice Ginsburg pointedly told the medical center's lawyer, "It's pretty odd that Congress would have set up an entirely different standard for retaliation."

But Justice Antonin Scalia countered that it was not the Court's job to "psychoanalyze Congress." Along with Scalia, Justices Anthony Kennedy and Samuel Alito expressed concern that a ruling for the employee could make it more difficult for employers to dismiss frivolous claims. For instance, Justice Kennedy asked, "Shouldn't we be very careful about people claiming discrimination knowing they're about to be fired?"

The Obama administration is siding with the plaintiff in the case. A decision is expected by the end of the Court's term in June. XpertHR will have more detailed coverage of the issue in an upcoming podcast.

Additional Resources

Supreme Court to Hear "Mixed Motive" Title VII Case

What to Watch at the Supreme Court in 2013