Yesterday, the Supreme Court issued a decision that may stem the tide of retaliation claims under Title VII of the Civil Rights Act. Specifically, the Court held in University of Texas Southwestern Medical Center v. Nassar, Case No. 12-484 (June 24, 2013), that current or former employees suing for retaliation (e.g. claims of adverse treatment for filing a discrimination charge or participating in an investigation) have a higher standard of proof than those asserting more traditional discrimination claims.
Explosion of Retaliation Claims
As many employers are aware, retaliation claims have exploded in recent years. According to data from the Equal Employment Opportunity Commission (EEOC), the number of retaliation claims filed with the agency has nearly doubled in the past 15 years. Indeed, there are now more retaliation claims filed with the EEOC than any other type of charge.
The underlying story here began back when Congress amended Title VII by passing the Civil Rights Act of 1991. Among other things, these amendments changed the threshold of proof for discrimination claims from what has been called the “but-for” test (i.e., the challenged employment action would not have occurred “but for” the employer’s illegal motivation) to the less-onerous, “motivating factor” standard (i.e., was the employee’s protected class a motivating factor for the challenged action?).
Higher Standard Now Applies to Retaliation Claims
Writing for a 5-4 majority, Justice Kennedy’s rather lengthy analysis of Title VII and the 1991 amendments boiled down to a simple conclusion that Congress never intended the lower, “motivating factor” analysis to apply to retaliation claims but rather, just to discrimination claims based on the traditional Title VII factors of race, color, religion, sex and national origin.
Accordingly, retaliation claims must be evaluated under the more rigorous test of whether “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”
Bottom Line
It is now clear that the “but-for” standard applies to retaliation claims under Title VII and to claims under the Age Discrimination in Employment Act (ADEA) in accordance with the Court’s decision in Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009). It remains to be seen whether this analysis also will be applied to retaliation claims under other discrimination laws, such as the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA). Still, this is a big win for employers who now will get the benefit of a more exacting review of retaliation claims under Title VII.