Split U.S. High Court Finds Higher Standard For Title VII Retaliation Claims

Split U.S. High Court Finds Higher Standard For Title VII Retaliation Claims

WASHINGTON, D.C. - (Mealey's) Retaliation claims filed under Title VII of the Civil Rights Act of 1964 must prove but-for causation, a split U.S. Supreme Court ruled June 24, rejecting the lessened causation test outlined in 42 U.S. Code Section 2000e-2(m) [an annotated version of this statute is available to lexis.com subscribers]  (University of Texas Southwestern Medical Center v. Naiel Nassar, No. 12-484, U.S. Sup.) (lexis.com subscribers may access Supreme Court briefs and the opinion for this case).

"Title VII defines the term 'unlawful employment practice' as discrimination on the basis of any of seven prohibited criteria:  race, color, religion, sex, national origin, opposition to employment discrimination, and submitting or supporting a complaint about employment discrimination. The text of §2000e-2(m) mentions just the first five of these factors, the status-based ones; and it omits the final two, which deal with retaliation. When it added §2000e-2(m) to Title VII in 1991, Congress inserted it within the section of the statute that deals only with those same five criteria, not the section that deals with retaliation claims or one of the sections that apply to all claims of unlawful employment practices. And while the Court has inferred a congressional intent to prohibit retaliation when confronted with broadly worded antidiscrimination statutes, Title VII's detailed structure makes that inference inappropriate here. Based on these textual and structural indications, the Court now concludes as follows:  Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e-2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer," Justice Anthony M. Kennedy wrote for the majority.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Anthony Alito Jr. joined in the opinion.

Bonded Claims

Justice Ruth Bader Ginsburg filed a dissenting opinion, saying the majority erred in finding that a stricter standard must be met for a retaliation claim. "In so reining in retaliation claims, the Court misapprehends what our decisions teach:  Retaliation for complaining about discrimination is tightly bonded to the core prohibition and cannot be disassociated from it. Indeed, this Court has explained again and again that 'retaliation in response to a complaint about [proscribed] discrimination is discrimination' on the basis of the characteristic Congress sought to immunize against adverse employment action. Jackson v. Birmingham Bd. of Ed., 544 U. S. 167, 179, n. 3 (2005) (emphasis added; internal quotation marks omitted) [an enhanced version of this opinion is available to lexis.com subscribers].

"The Court shows little regard for the trial judges who will be obliged to charge discrete causation standards when a claim of discrimination 'because of,' e.g., race is coupled with a claim of discrimination 'because' the individual has complained of race discrimination. And jurors will puzzle over the rhyme or reason for the dual standards. Of graver concern, the Court has seized on a provision, §2000e-2(m), adopted by Congress as part of an endeavor to strengthen Title VII, and turned it into a measure reducing the force of the ban on retaliation," she wrote.

Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined in the dissenting opinion.

Critical Supervisor

Naiel Nassar, who is of Middle Eastern descent, was hired by UTSW in 1995 to work in Parkland Hospital's Amelia Court Clinic. After three years, Nassar pursued additional training at the University of California at Davis.

In 2001, Nassar returned to UTSW as an assistant professor of internal medicine and infectious diseases and associate medical director of the clinic. Dr. Beth Levine was hired in June 2004 as chief of infectious disease medicine. She oversaw the Amelia Clinic but did not work there on a daily basis. Almost immediately, Levine began inquiring about Nassar's productivity and billing practices. In late 2005, when referring to another doctor of Middle Eastern descent, Levine said in Nassar's presence, "Middle Easterners are lazy."

In spring 2006, in reference to the hiring of that same doctor, Levine said they have "hired another one" in the presence of Dr. Phillip Keiser, Nassar's immediate supervisor. Keiser told Nassar what Levine had said and informed Nassar that Levine scrutinized Nassar's productivity more than that of other doctors. When Keiser had presented Levine with objective data demonstrating Nassar's high productivity, Levine began criticizing Nassar's billing practices. Levine's criticism did not take into account that Nassar's salary was funded by a federal grant that precluded billing for most of his services.

Around the same time, Levine suggested that Nassar consider applying for a promotion to become an associate professor. Nassar was promoted March 1, 2006, effective Sept. 1, 2006.

Despite the promotion, Nassar claimed that Levine's harassment continued, and he began to look for a way to continue working at the clinic without being a UTSW faculty member subject to Levine's supervision. On June 3, 2006, Parkland offered Nassar a job as a staff physician on Parkland's payroll, starting July 10, 2006. Nassar resigned from UTSW on July 3. Dr. Gregory Fitz, UTSW's chair of Internal Medicine and Levine's immediate supervisor, opposed Parkland's hiring Nassar. He claimed that UTSW had a right to fill Parkland doctor positions with UTSW faculty.

Fitz's opposition prompted Parkland to withdraw its offer. Nassar then accepted a position at a smaller HIV/AIDS clinic in Fresno, Calif.

Federal Suit

In August 2008, Nassar sued UTSW in the U.S. District Court for the Northern District of Texas, alleging that UTSW had constructively discharged him and retaliated against him in violation of Title VII of the Civil Rights Act of 1964. The jury trial was bifurcated into a liability phase and a damages phase. At the close of Nassar's case in the liability phase, UTSW moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a), which the District Court denied.

The jury found that Nassar's resignation from UTSW was the result of constructive discharge and that UTSW blocked Parkland from hiring Nassar in retaliation for Nassar's statements in the July 3 letter. Nassar moved for front pay to be included as part of his recovery. The District Court denied that motion and proceeded with the damages phase of the trial. The jury awarded Nassar $436,167.66 in back pay and more than $3 million in compensatory damages.

UTSW then filed a renewed motion for judgment as a matter of law, a motion for new trial and a motion for remittitur. The District Court denied UTSW's motions for judgment as a matter of law and for a new trial. The District Court did, however, grant UTSW's motion for remittitur because of Title VII's compensatory damages cap, which required reducing the compensatory damage award to $300,000. Nassar then moved for attorney fees, and the District Court awarded him $489,927.50 in fees plus court costs. UTSW appealed. Nassar cross-appealed, challenging the District Court's denial of front pay.

Liability For Discharge

The Fifth Circuit panel vacated the District Court's judgment regarding UTSW's liability for constructive discharge but affirmed the court's judgment regarding liability for retaliation. It remanded for reconsideration of Nassar's monetary recovery and the award of attorney fees.

UTSW petitioned the U.S. Supreme Court. Oral arguments were held April 24.


Daryl L. Joseffer of King & Spalding in Washington, D.C., represents UTSW. Brian P. Lauten of Sawicki & Lauten in Dallas represents Nassar.

H. Christopher Bartolomucci of Bancroft in Washington filed an amicus curiae brief on behalf of American Council on Education and six other higher education organizations. Solicitor General John J. Bursch in Lansing, Mich., filed an amicus brief on behalf of Michigan and 11 other states. Michael Foreman of Civil Rights Appellate Clinic in University Park, Pa., filed an amicus brief on behalf of National Employment Lawyers Association, The Leadership Conference on Civil and Human Rights, et al. Charlotte Garden of Seattle University School of Law in Seattle filed an amicus brief on behalf of Committee of Interns and Residents SEIU, Doctors Council SEIU and Korean American Medical Association.

Gregory G. Garre of Latham & Watkins in Washington filed an amicus brief on behalf of the U.S. Chamber of Commerce and the Retail Litigation Center. Neal Goldfarb of Washington filed an amicus brief on behalf of Washington Lawyers Committee for Civil Rights and Urban Affairs, the Employment Justice Center and Employment Litigators. Jon M. Greenbaum of Lawyers' Committee for Civil Rights Under Law in Washington filed an amicus brief on behalf of Lawyers' Committee for Civil Rights Under Law. David J. Hacker of Alliance Defending Freedom in Folsom, Calif., filed an amicus brief on behalf of Foundation for Individual Rights in Education and Alliance Defending Freedom.

Samer B. Korkor of Cadwalader, Wickersham & Taft in Washington filed an amicus brief on behalf of American-Arab Anti-Discrimination Committee, et al. Francisco M. Negron Jr. of National School Boards Association in Alexandria, Va., filed an amicus brief on behalf of National School Boards Association. Aaron M. Nisenson of American Association of University Professors in Washington filed an amicus brief on behalf of American Association of University Professors. Alice M. O'Brien of National Education Association in Washington filed an amicus brief on behalf of National Education Association. Benjamin G. Robbins of New England Legal Foundation filed an amicus brief on behalf of New England Legal Foundation.

Mary M. Ross of DRI in Bloomfield Hills, Mich., filed an amicus brief on behalf of DRI-The Voice of the Defense Bar. Assistant to the Solicitor General Melissa A. Sherry and Solicitor General Donald B. Verrilli Jr. in Washington filed an amicus brief on behalf of the United States. Sandra F. Sperino of the University of Cincinnati College of Law in Cincinnati filed an amicus brief on behalf of Employment Law Professors. Rae T. Vann of Norris, Tysse, Lampley & Lakis in Washington filed an amicus brief on behalf of Equal Employment Advisory Council, National Federation of Independent Business Small Business Legal Center and American Hospital Association.

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