Employment Law: The Shifting Landscape Of Retaliation Claims
Almost as soon as Justice Anthony Kennedy had finished announcing the U.S. Supreme Court's ruling in University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (June 24, 2013), the decision was widely reported as a victory for employers — and rightly so. The Supreme Court's holding that retaliation claims under Title VII of the Civil Rights Act are to be analyzed pursuant to the traditional "but for" causation standard, as opposed to the more liberal "motivating factor" standard applicable to discrimination claims, unequivocally raised the bar for any employee pursuing a claim of retaliation under Title VII.
However, predicting how lower courts will interpret and apply decisions from the Supreme Court is an inexact science, making it an open question as to the magnitude of any victory. Was Nassar a narrow ruling, expressly applicable only to retaliation claims under Title VII? Or was it a seismic shift that would inevitably impact other federal anti-discrimination laws, such as the Americans with Disabilities Act (ADA), 42 U.S.C. §1981, and the Family and Medical Leave Act (FMLA)? If early indications hold true, the impact of Nassar upon retaliation claims appears to be closer to the latter.
It is well-established in the Second Circuit, which has jurisdiction over Connecticut, New York and Vermont, that retaliation claims under federal anti-discrimination statutes are generally analyzed in the same manner as Title VII claims. See Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) ("All of plaintiffs' retaliation claims are analyzed pursuant to Title VII principles."). Two district courts have recently relied upon this principle, in conjunction with Nassar, to extend the "but for" causation standard to retaliation claims under the ADA and § 1981.
In Rolfe v. Lawrence & Memorial Hospital, No. 3:10-cv-80 (RNC) (D. Conn. Sept. 30, 2013), an employee brought a claim for retaliation in violation of the ADA, alleging that her refusal to nominate her employer for an award led to a change in her job assignment. Judge Robert N. Chatigny, relying upon the principle that claims of ADA retaliation are analyzed identically to claims under Title VII, cited to Nassar in support of the application of "but for" causation to claims under the ADA. Judge Chatigny then granted summary judgment on the employee's ADA retaliation claim, holding that the employee's evidence "does not suffice to meet plaintiff's burden to show that her refusal to nominate her employer was a but-for cause of the reassignment."
Similarly, in Whethers v. Nassau Health Care Corp., No. 06-cv-4757 (DRH)(MLO) (E.D.N.Y. July 8, 2013), an employee brought retaliation claims pursuant to both Title VII and §1981. The district court first found that "the Supreme Court recently clarified the causation standard" required for retaliation claims under Title VII. The court then analyzed the employee's evidence using the heightened "but for" causation standard and granted summary judgment to the employer on the Title VII and §1981 retaliation claims. As to the employee's cause of action under §1981, the court reasoned that "retaliation claims under §1981 are generally analyzed in the same manner as under Title VII."
The reliance upon Nassar to extend "but for" causation to §1981 claims is not an anomaly. Indeed, the U.S. Court of Appeals for the Eighth Circuit recently removed any ambiguity within its jurisdiction when it found that "in light of Nassar and our precedent, it is now definitively established that the determining-factor standard logically must be met in both Title VII and § 1981 retaliation cases." Wright v. St. Vincent Health System, No. 12-3162 (8th Cir. Sept. 18, 2013). Of note, the "precedent" the Wright court referenced is the same principle applicable in the Second Circuit; that retaliation claims under §1981 are analyzed in the same manner as under Title VII.
The early returns on retaliation claims under the FMLA are less clear. There have yet to be any decisions in the Second Circuit expressly applying Nassar to an employee's claim of FMLA retaliation. However, in Wanamaker v. Town of Westport Board of Education, No. 3:11-cv-1791 (MPS)(WIG) (D. Conn. July 16, 2013), U.S. Magistrate William I. Garfinkel recently allowed counsel to file supplemental briefing as to whether the "but for" analysis in Nassar should be applied to claims of FMLA retaliation. Other district courts presented with the issue have been split. See e.g., Sparks v. Sunshine Mills Inc., No. 3:12-cv-02544-IPJ (N.D. Ala. Sept. 4, 2013) (holding that the "but for" standard under Nassar applies to FMLA retaliation claims because both statutes contain similar wording); Chaney v. Eberspaecher North America, No. 12-13023 (E.D. Mich. July 8, 2013) (holding that Nassar, while informative, did not change the applicable standards to FMLA retaliation claims).
Impact Of 'But For' Analysis
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.
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.•