In California, a plaintiff alleging retaliation can survive summary judgment, or prevail at trial, simply by showing that her protected activity was a “substantial motivating factor” in her adverse employment action. But, does that same, relaxed standard apply to cases under Title VII?
That was the question addressed in University of Texas Southwestern Medical Center v. Nassar, which the Supreme Court decisively answered, “No.”
Dr. Naiel Nassar, a physician and faculty member of Middle Eastern descent, alleged that the University of Texas Southwestern Medical Center retaliated against him for complaining that his supervisor harassed him on the basis of his national origin. The lower court instructed the jury that retaliation claims, like discrimination claims, require only a showing that retaliation was a motivating factor, rather than the “but-for” cause, of his adverse employment action. The jury returned a verdict for Dr. Nassar, the Fifth Circuit affirmed, and the Supreme Court reversed.
The Court clarified that a plaintiff alleging retaliation under Title VII must show that his or her complaint of harassment or discrimination was the “but for” cause of an adverse employment action. This means that a plaintiff must convince a jury that he or she would not have suffered the adverse employment action if he or she had not complained. This is in line with the Court’s decision in Gross v. FBL Financial Services, Inc., which settled a plaintiff’s burden to prove age discrimination/retaliation claims under the ADEA.
With retaliation suits multiplying in frequency (they have nearly doubled in frequency since 1997), the Court’s decision strikes a balance between protecting employees’ rights and employers from frivolous claims. As the Court noted, allowing a “lessened causation standard” for retaliation claims would “make it far more difficult to dismiss dubious claims at the summary judgment stage.” Slip Op. at 18. It is important to note that the “lessened causation standard” remains in effect in Title VII discrimination claims and under all discrimination and harassment claims under California’s Fair Employment and Housing Act. Nevertheless, because a plaintiff cannot simply show that his or her protected activity was a motivating factor in the adverse employment action, the plaintiff will have to put in some work to survive summary judgment on his or her retaliation claim. More importantly, this decision will hopefully lead to clearer jury instructions and less jury confusion on the plaintiff’s burden of proof.
- Ferry Lopez (Los Angeles)