The U.S. Supreme Court is now weighing arguments in a case with important ramifications for the many employers that have been accused of retaliation — or who fear being accused of retaliation — when they discipline or fire an employee. For workers, the case raises questions about the strength and scope of Title VII’s anti-retaliation protections.
University of Texas Southwest Medical Center v. Nassar, No. 12-484, involves Naiel Nassar, a physician of Middle-Eastern descent who did not get along with his supervisor at the University of Texas Southwest Medical Center and accused her of racial and religious discrimination. When he tried to get a job elsewhere, he claimed medical center administrators blocked his efforts in retaliation for his earlier discrimination complaint.
As noted above, the issue is an important one. As any honest supervisor who has taken adverse action against an employee knows, the circumstances leading up to the decision are rarely cut and dry. One would hope that the reasons are legitimately work-related. But it’s often the case that more is going on. In fact, it’s not uncommon for workers who are at odds with their supervisors to allege some kind of illegal discrimination. Of course it is illegal to retaliate against an employee who lodges that kind of complaint, but it’s not unusual for that supervisor to harbor a grudge.
Mixed motives
In the case before the court, it appeared that one of the motives for supervisors to block Nassar’s move to another facility was retaliation for a prior claim he made. Indeed a jury had ruled against the medical center on those grounds. But there was also a legitimate, work-related reason. The issue is how far do anti-retaliation protections go in such “mixed motive” cases.
In cases involving alleged discrimination under Title VII, Congress has said that a plaintiff employee can prove a violation by showing that race, sex, etc. was a reason for the employer’s adverse action, even if there were other (legitimate) causes for the employer’s action. However, in cases involving alleged discrimination under the Age Discrimination in Employment Act, such a showing is insufficient to establish a violation. In ADEA cases, the employee must show that age was the“but for” cause of an employer’s adverse action. (Gross v. FBL Financial Services, 557 U.S. 167 (2009))
The Court will be deciding the standard to be used in Title VII retaliation cases when the employee claims that the employer took retaliatory action because the employee had previously filed a claim of discrimination under Title VII.
It is management’s position that an employee who alleges retaliation under Title VII must prove that his employer would not have taken an adverse action but for the existence of an improper motive. On the other hand, plaintiffs hope the court will decide that Title VII’s anti-retaliation provisions only require an employee to prove that the employer had retaliation as one of its motives.
Nassar wants to use a single standard
According to Nassar’s attorneys, a single standard should apply in all Title VII cases, including those involving discrimination based on race, sex, etc. and in cases involving retaliation based on a prior claim of such discrimination.
The medical center, however, is arguing that Congress explicitly confined the test of “a motive” to cases involving substantive discrimination based on race, sex, etc. Thus the medical center is claiming that the court should not reach out and apply that standard to retaliation cases.
The issues are significant. If an employer retaliates against an employee, even in part for the employee’s filing a prior claim, employees would be reluctant to file such claims. If employees are too intimidated to file claims, the statutory protections against discrimination would be empty promises.
On the other hand, if an employer can show that the adverse action was taken against the employee for legitimate work-related reasons, the employer ought to prevail, even if the employee’s prior claim is “a reason” for the adverse action.
In any event, employers that wish to take adverse action against an employee who has filed a prior claim of discrimination should pay careful note of this issue controversy before taking any action, even if there are legitimate grounds for such action.
Harold Datz teaches employment and labor law at George Washington University Law School, Georgetown University Law School and at the Washington College of Law at American University. He was an attorney with the National Labor Relations Board for more than 40 years, serving as chief counsel from 1990-2008. He can be reached directly at harold.datz@gmail.com.