Employment Law: The Shifting Landscape Of Retaliation Claims

, The Connecticut Law Tribune

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Of course, a court's interpretation as to which of the differing analytical methods applies to employee retaliation claims is of little consequence if it makes no practical difference in the outcome of a case. A recent decision in Connecticut however confirmed the significance of the "but for" causation standard.

In Cassotto v. Potter, No. 3:09-cv-1303 (D. Conn. Aug. 8, 2013), an employee won a jury verdict on a claim of retaliation in violation of Title VII. The defendant-employer moved for a new trial on various grounds and, while the motion was pending, the Supreme Court issued its decision in Nassar. U.S. Magistrate Holly B. Fitzsimmons ruled that not only did Nassar apply retroactively, but that the court "must set aside the jury's verdict and order a new trial" because the jury had been instructed using the "substantial or motivating factor" standard, instead of the heightened "but for" causation standard.

Basis For Extension

That courts have thus far been willing to apply "but for" causation outside of the confines of Title VII retaliation claims is perhaps not surprising. Many of the arguments that Justice Kennedy set forth in Nassar to justify the heightened causation standard for Title VII retaliation claims apply with equal force to claims of retaliation under other federal anti-discrimination statutes.

The Supreme Court reasoned in Nassar that because Congress had not provided express language authorizing the lesser "motivating factor" burden of proof to retaliation claims under Title VII, plaintiffs must satisfy the default "but for" standard of proof for torts. Similarly, despite the opportunity for Congress to do so, the "motivating factor" language is not codified in the ADA, §1981, or the FMLA.

Further, the Court reasoned that "lessening the causation standard could also contribute to the filing of frivolous claims" and noted that retaliation claims were multiplying in "ever-increasing frequency" with the number of retaliation claims filed with the Equal Employment Opportunity Commission (EEOC) nearly doubling since 1997. This reasoning applies equally to claims of retaliation under other statutes. Indeed, retaliation claims under those statutes are actually included in the EEOC numbers that Justice Kennedy cited.

Conclusion

There is little dispute that Nassar was a victory for employers. As a practical matter, however, the fact that a higher causation standard applies to retaliation claims should not greatly affect how employers manage employee performance. Clear and unambiguous policies that forbid retaliation, along with prompt investigations, are still vital in preventing such claims.

The lesson of Nassar for employers is to call attention to the critical role that documentation of employee performance issues plays in retaliation claims. Consistent, written evidence documenting performance issues and validating an employer's decision make it difficult for an employee to later establish that his or her purported protected activity was the "but for" cause of an adverse action. This is especially important as retaliation claims can be challenging for employers to defend. An employee in fact may be able to assert a viable retaliation claim even if his or her underlying discrimination claim is found to lack merit. The early trend by courts in interpreting Nassar broadly may result in fewer retaliation claims of all types making it before juries.•

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