Supreme Court Holds That “But-For” Standard Applies In Title VII Retaliation Cases

Darrell VanDeusen
Darrell VanDeusen

In one of the biggest employment cases this year, in a 5-4 decision the Supreme Court  held that the mixed-motive theory under employment discrimination laws cannot be used in retaliation claims. Univ. of Texas Sw. Med. Ctr. v. Nassar, 2013 U.S. LEXIS 4704 (June 24, 2013).   In Nassar, the Court addressed the federal circuit split that has developed following its 2009 decision in Gross v. FBL Financial Servs. Inc., 557 U.S. 168 (2009).

A little background:  In Price Waterhouse v. Hopkins,490 U.S. 228 (1989), the Supreme 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 the discrimination would not have occurred “but for” the plaintiff’s protected status.  Instead, in that Title VII sex discrimination case, the Supreme Court held that the plaintiff needed only show that sex stereotyping was “a motivating factor” in the decision-making process.   In that case, however, said the Supreme 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.” 42 U.S.C. § 2000e-2(m).  The enforcement section of Title VII was also amended to provide limited damages when a plaintiff wins a mixed motive case.  See 42 U.S.C. § 2000e-5(g)(2)(B).

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, 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.

In the three years since Gross, the federal appellate courts have struggled to make coherent sense of the mixed-motive analysis when considering claims other than those raised under Section 703 of Title VII.  The result has been, well, mixed.  Some Circuits hold that mixed-motive is not available; some hold that it is available using the parts of Price Waterhouse that were not overruled by the 1991 Civil Rights Act.  With Smith v. Xerox, 602 F.3d 320 (5th Cir. 2010), the Fifth Circuit landed in the latter category, holding that a Title VII retaliation claimant may prevail if “a motivating factor” in the employer’s adverse action was because of the plaintiff’s protected activity under Section 704.   The appellate court followed that precedent when it decided Nassar.

The Supreme Court reversed and remanded the case.   In his opinion, Justice Kennedy (joined by Justices Alito, Scalia, Thomas and Chief Justice Roberts) found that a review of the plain language of Section 703(m) showed that Congress could have – but did not – include retaliation under the “mixed-motive” analysis.  In dissent, Justice Ginsburg (joined by Justices Breyer, Sotomayer and Kagan) argued that, despite the plain language, this parsing of standards defies common sense, particularly because retaliation claims are among those the Court has said it most wants to protect.  Justice Ginsburg’s dissenting opinion seeks Congressional action to overturn the Nassar decision.

At least for now, Nassar settles the way in which Title VII claims will be addressed.  It will be interesting to see whether courts will apply Nassar to other anti-discrimination statutes where the mixed-motive analysis is not codified, such as the FMLA and ADA.

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