Retaliation in the workplace is unlawful after an employee has engaged in a protected action. For example, an employer cannot terminate an employee as a retaliatory measure for the employee filing a workers’ compensation claim, taking protected FMLA leave, or filing a complaint over safety issues with OSHA. But what happens when there are a whole host of reasons an employer might want to terminate an employee?
If the employee claims that retaliation was one reason, but it was only one of many, is the employer still found to be acting in an illegal retaliatory manner? Or must retaliation be proven to be the sole reason for the negative employment action?
This was the question at hand in University of Texas Southern Medical Center v. Nassar. Let’s take a look at retaliation claims in general, and then see how the court ruled on this question.
Retaliation in the Workplace
Retaliation is the most common type of discrimination alleged nationally. This occurs after an employee engages in a protected activity, and the employer takes some adverse action against the employee such as firing, refusing to hire, denying a promotion, threatening, giving an unjustified negative evaluation or reference, using increased surveillance, etc. These actions are retaliatory when there is a casual connection between the protected activity and the adverse action.
“The law really protects employees when they complain – either internally or to an outside body like the EEOC – about workplace discrimination or harassment. And this is true even if the claim turns out to be unfounded or has no validity, as long as it’s made in good faith.” John Gannon told us in a recent BLR webinar.
When making a claim of retaliation, does an employee have to prove that the only reason the employer took an adverse action was retaliation (and it would not have happened otherwise)? Or does it suffice to show that the employer’s reasoning is mixed (retaliation was a motivating factor, though not the only factor)?
These questions are critically important because, depending on the standard of proof, the plaintiff can have an easy or difficult time making his case. Some courts have said it has to be the only reason, while others have said that retaliation could still be found (and the employee wins) even with mixed rationale. It boils down to these two options:
- Motivating Factor. Is it enough that retaliation is proven to be a “motivating factor”? The ‘motivating factor’ (or the ‘combination’) standard of proof “requires a plaintiff to show the improper motive – the unlawful motive – was really the motivating factor . . . out of all the reasons that were given for the employment action.” Gannon explained.
- Only Factor. This is often called the “but-for” standard of proof. It says there must be proof that the negative employment action would not have been taken otherwise. It is much more favorable to employers. “This requires the plaintiff to show that the employer would not have taken the adverse employment action but for the improper motive.” Gannon explained.
University of Texas Southwestern Medical Center v. Nassar
In University of Texas Southwestern Medical Center v. Nassar, the Court ruled on this question: what is the standard of proof required in Title VII retaliation claims? Prior to this case, it was unclear which standard applied to retaliation cases.
Dr. Naiel Nassar, a medical doctor of Middle Eastern descent who was both a University faculty member and a hospital staff physician, claimed that Dr. Levine, one of his supervisors at the University, was biased against him on account of his religion and ethnic heritage. He complained to Dr. Fitz, Levine’s supervisor.
But after he arranged to continue working at the hospital without also being on the University’s faculty, he resigned his teaching post and sent a letter to Fitz and others, stating that he was leaving because of Levine’s harassment. Fitz, upset at Levine’s public humiliation and wanting public exoneration for her, objected to the hospital’s job offer, which was then withdrawn.
Nassar sued the University of Texas Southwestern Medical Center alleging that the University retaliated against him for complaining of the alleged harassment.
At trial in District Court, the jury was instructed that retaliation claims, like discrimination claims, require only a showing that retaliation was a “motivating factor” among many factors for the adverse action, rather than the “but-for” cause. The jury found for Nassar.
After appeal, the US Court of Appeals for the Fifth Circuit affirmed the retaliation finding. Another appeal took the case to the Supreme Court, who then reversed the Fifth Circuit decision. The Court held that Title VII retaliation claims must be proved according to the traditional principles of “but-for” causation. They advised that using the higher standard may stop the “ever-increasing frequency” of retaliation cases, particularly those “frivolous claims” which “siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment.”
For more information on the University of Texas Southwestern Medical Center v. Nassar and how it relates to retaliation in the workplace, order the webinar recording of “Supreme Court Roundup: The Latest Labor and Employment Law Rulings Explained.” To register for a future webinar, visit http://store.blr.com/events/webinars.
John S. Gannon is an associate with Skoler, Abbot & Presser, P.C. and practices in the firm’s Springfield, Massachusetts, office. He defends employers against discrimination, retaliation, harassment, wrongful termination, and related claims.