A moving letter from a “Witness”

This is a letter we received from a reader of Call To Witness. We have expressed our gratitude for the letter privately with them. With the reader’s consent, I am posting it here to share with you the words of personal struggle expressed in the letter, most important, the reader’s spirit and personal empowerment.

Dear Ms. Blackman, Ms. Gagliardo, and Mr. Reilly,

I recently read Call to Witness, and would like to express my appreciation to each of you for the inspiration that this book provided me. Together, you formed a formidable team that continues to impart strength to others through the telling of your story. My thanks go, also, to all of those who accompanied you on your journey to justice.

The attributes I came to most admire while reading the book are:

Ms. Blackman’s talent and dedication,
Ms. Gagliardo’s courage and determination, and
Mr. Reilly’s expertise and astute timing.

The combination of these attributes creates a powerful framework for those of us struggling with health care issues. I am the health care advocate for my husband, who has had multiple sclerosis for almost 30 years and now, at age 52, lives in a long-term care facility. I am also the advocate for my elderly father and aunt. I am recovering from a car accident of four years ago that stole me away from my teaching career. My injuries were suspect in the eyes of the disability insurance company, and I had to endure the indignity of proving that I did suffer a disability. Thankfully, I had employers who believed in me and an attorney who fought for me. I am gradually working to return to the career that I love, and I feel empowered by your message.

Thank you for sharing your story of endurance and triumph. I am recommending Call to Witness to friends and family members.

Sincerely,

A Witness

University of Texas v. Nassar

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.