Employment Law: Employers Gain Edge In Defending Retaliation Claims
June 24, 2013, was a good day for employers. Two decisions came down from the U.S. Supreme Court that bode well for defense attorneys by limiting claimants chances of prevailing on retaliation claims and claims against employers for vicarious liability for the illegal actions of putative supervisors. Each case had the exact same split, with Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts joining the majority opinion, and Justices Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan offering dissenting opinions.
In University of Texas Southwestern Medical Center v. Naiel Nassar, the respondent was a doctor of internal medicine and specialized in infectious diseases at the medical center. Naiel Nassar also happened to be of Middle Eastern descent. In 2004, Dr. Beth Levine became his ultimate supervisor and allegedly had a bias against the respondent based upon his religion and ethnicity, as evidenced by unjustified scrutiny of Nassar's billing practices and comments such as, "Middle Easterners are lazy."
Nassar decided that he wanted to leave his teaching post at the university, yet continue to work at the medical center. He wrote a letter to Dr. Fritz, Levine's superior, citing as his reason for leaving his teaching post "harassment" by Levine. However, once Nassar left his teaching position, as per the rules of the university and at the urging of Dr. Fritz, the medical center withdrew its offer of a position.
Nassar filed a Title VII suit alleging two claims. First, he alleged status based discrimination via harassment which resulted in his constructive discharge. Second, he alleged that Dr. Fritz's efforts to stop the medical center from hiring Nassar was in retaliation for Nassar's complaints about Levine. The jury found for Nassar on both counts and awarded damages.
The U.S. Court of Appeals for the Fifth Circuit vacated the jury's verdict as to the constructive discharge, concluding that Nassar has submitted insufficient evidence. However, it affirmed as to the retaliation claim, reasoning that the claimant need only show that the retaliation was a "motivating factor" for the adverse employment action.
The Supreme Court held that claimants alleging retaliation must prove their claims under a more stringent "but for" causation standard, while noting that status based claims (race, color, religion, sex, nationality) may succeed under a mixed motive theory. The majority opinion, written by Justice Kennedy, took pains to go through the salient statutory history of Title VII, while comparing its analysis to that of Gross v. FBL Financial Services Inc., 557 U.S. 167, 129 S.Ct. 2343 (2009).
Ultimately, the decision is founded on the plain textual differences between Title VII's provisions found in 2000e-2(a), which prohibits status based employment discrimination and 2000e-3(a), which prohibits employer retaliation. Basically the 1991 amendments to Title VII codified some of the mechanics of Price Waterhouse's burden-shifting schema. The amendments codified, in 2000e-2(m), that claimants alleging status based discrimination claims need only demonstrate that the discriminatory animus was a motivating factor in the adverse employment action. On the other hand, 2000e-3(a) prohibited employer retaliation "because" an employee opposed a prohibited practice or complained of unlawful employment practices. The Supreme Court held that the word "because" meant that the retaliation was the "but for" cause of the adverse employment action.
The phrase "mixed motive" refers to instances where an employer has both legitimate and unlawful motives for discriminating or retaliating. As noted in the Nassar decision, mixed motive claims of race, color, religion, sex and national origin discrimination can result in employer liability for attorney fees and costs, declaratory relief and some forms of injunctive relief where the claimant can show that his or her status was a motivating factor in the adverse employment action. According to the Nassar majority, the employer's "proof that it would still have take the same employment action would save it from monetary damages and a reinstatement order."
Mixed motive claims of retaliation have a less certain future, and have a higher likelihood of being short-circuited through summary judgment. And that was part of the motivation of the majority in this decision: to discourage retaliation claims, encourage a "fair and responsible allocation of resources in the judicial and litigation systems," and make it more likely that "dubious claims" be stopped at the summary judgment stage.