VanDeusen on Univ. of Texas Sw. Med. Ctr. v. Nassar: Supreme Court Holds "But-For" Standard Applies in Title VII Retaliation Cases

VanDeusen on Univ. of Texas Sw. Med. Ctr. v. Nassar: Supreme Court Holds "But-For" Standard Applies in Title VII Retaliation Cases

 In perhaps the biggest employment case this term, the Supreme Court has held that a "but-for" standard – not the "mixed motive" analysis applies to retaliation claims under Title VII. In Univ. of Texas Sw. Med. Ctr. v. Nassar, the court resolved the Circuit split that developed after its 2009 decision in Gross v. FBL Financial Servs. Inc., 557 U.S. 168 (2009) [an enhanced version of this opinion is available to subscribers].



The history of the issue is fascinating. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) [enhanced version], the Court first recognized that to prove employment discrimination, a plaintiff need not show that the employer's intentional discrimination was "the" motivating factor, or that "but for" the plaintiff's protected status. Instead, in that Title VII sex discrimination case the Court held that the plaintiff needed only show that sex stereotyping was "a motivating factor" in the decision making process. But, in that case, said the Court, if an employer could show that it would have made the same decision in the absence of the discriminatory motivation, the employer would still win and the plaintiff would go away empty handed.

Congress overturned certain aspects of Price Waterhouse in the 1991 Civil Rights Act, when it amended Title VII and codified the "mixed-motive analysis." Section 703(m) was added to provide that an employer is liable for discrimination if "the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." The enforcement section of Title VII was also amended to provide limited damages when a plaintiff wins a mixed motive case.

But this Congressional action failed to address two important things: first, it did not completely overrule Price Waterhouse; second, it did not apply the codified version of the mixed-motive analysis to anything other than Section 703 of Title VII. Section 703 is the part of Title VII that prohibits discrimination based on race, sex, color, national origin and religion. Congress did not apply mixed-motive to Title VII's Section 704 -- the retaliation section -- or to any other federal anti-discrimination law (the ADA, the ADEA or the FMLA to name a few).

In Gross v. FBL Financial Servs. Inc., the Court held (in a 5-4 decision) that the plain language of the Age Discrimination in Employment Act does not permit use of the mixed-motive theory. As a result, an ADEA plaintiff must prove that "but-for" his or her age the employer would not have taken the adverse employment action. [footnotes omitted]

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