Supreme Court Sides With Employer in Raising Bar for Retaliation

Author: David B. Weisenfeld, XpertHR Legal Editor

June 26, 2013

The Supreme Court has made it more difficult for employers to be successfully sued for retaliation with its June 24 ruling in University of Texas Southwestern Medical Center v. Nassar, No. 12-484. The Court held 5-4 that retaliation claims filed under Title VII of the Civil Rights Act are subject to a higher standard of proof than discrimination claims.

Title VII permits employees to prevail in a discrimination lawsuit if the employer had both legitimate and illegal motives for an adverse employment decision (i.e., a firing, demotion or denial of employment), also known as the mixed-motive standard. But the statute is silent as to retaliation claims.

Writing for the Court, Justice Anthony Kennedy found that silence significant. He explained that an individual can win a retaliation case only by showing the employer would not have acted "but for" an improper motive. The Court had applied a similar standard in a 2009 case involving the Age Discrimination in Employment Act. Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009).

Extra Safeguard for Employers

In Nassar, a doctor of Middle Eastern descent claimed his former employer coerced a prospective employer into withdrawing a job offer in retaliation for his racial discrimination complaints. Nassar had accused a former supervisor of saying in his presence, "Middle Easterners are lazy." He also claimed the supervisor was biased against him based on his religion and ethnic heritage.

However, the Supreme Court determined that Nassar needed to show the job offer would not have been withdrawn "but for" the employer's alleged intent to retaliation. In reaching this conclusion, the majority expressed concern that a lower standard of proof could contribute to the filing of frivolous claims, siphoning resources from employers, agencies and courts to combat workplace harassment.

Strong Words in Dissent

Writing for the dissenters, Justice Ruth Bader Ginsburg claimed the Court had seized on something that was meant to strengthen worker protections - the 1991 amendments to Title VII - and instead turned it into a measure that reduced employee protections from retaliation.

"The Court appears driven by a zeal to reduce the number of retaliation claims filed against employers," Justice Ginsburg said. She concluded by calling upon Congress to overrule this ruling along with that of Vance v. Ball State University, No. 11-556, which was decided the same day, so this may not be the last word on the issue.