A Message from Patrick Reilly
On Monday, June 24, 2013, the United States Supreme Court, in the case of University of Texas v. Nassar, made it more difficult for employees claiming retaliation in the workplace to prove their damages. Title VII of the Civil Rights Act of 1964 prohibits wrongful discrimination in the Nation’s workplaces and in all sectors of economic endeavor. There are two categories of wrongful employer conduct prohibited by Title VII. Status-based discrimination refers to basic workplace protection such as prohibitions against employer discrimination on the basis of race, color, religion, sex, or national origin, in hiring, firing, salary structure, promotion and the like. The second type of conduct is employer retaliation on account of an employee’s having opposed, complained of, or sought remedies for, unlawful workplace discrimination.
For status- based discrimination, in order to prove a claim, it is sufficient to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision. Prior to the University of Texas decision, some courts applied the same standard to retaliation claims, but that will no longer be.
It is now clear that in order to establish a Title VII retaliation claim, the traditional principles of but-for causation, not Title VII’s lessened causation test applicable to status-based discrimination apply. This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer. The Americans with Disabilities Act (ADA) is not affected by this decision, as it specifically provides that all claims, including claims of retaliation related to an (ADA) complaint, need only prove that the motive to discriminate was one of the employee’s motives.
The majority of the Supreme Court Justices were swayed by the number of retaliation claims filed in comparison to status-based discrimination claims, causing a strain on the judicial and litigation systems. The number of retaliation claims has nearly doubled in the last 15 years, and more retaliation claims are filed than all status-based claims of discrimination other than race. It is now up to Congress, if it deems appropriate, to amend Title VII to address this causation issue.