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Unlawful Retaliation under Title VII: No More Mixed Messages

by The Human Equation, Inc. on 8/21/2013
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workplace discrimination

Title VII prohibits retaliation against employees who engage in protected activity, such as opposing or alleging unlawful workplace discrimination. Those suing for unlawful retaliation must prove that there is a link between the retaliation and their protected activity. But, how strong must the link be? The U.S. Supreme Court recently answered this question in University of Texas Southwestern Medical Center v. Nassar.

In this case, Dr. Nassar alleged that his supervisor was biased against him on account of his religion and ethnic heritage. His supervisor once remarked that “Middle Easterners are lazy,” and, upon hearing that another physician of Middle Eastern descent was hired, the supervisor said that the hospital had “hired another one.” Dr. Nassar lodged several complaints about his treatment. Thereafter, a series of events led to Dr. Nassar leaving the hospital for another position.

Dr. Nassar filed a lawsuit for constructive discharge and retaliation under Title VII. Following a jury trial, Dr. Nassar was awarded the maximum amount of compensatory damages allowed under Title VII, and $438,167 in back pay. Although the appellate court found insufficient evidence to support Dr. Nassar’s claim for constructive discharge, it affirmed his claim for retaliation.

The U.S. Supreme Court accepted this case to define the extent to which an employer’s decision to retaliate must be tied to—caused by—an employee’s protected activity in order to be considered unlawful retaliation under Title VII. The Court essentially had two options.

  1. Causation in Fact (But-For Causation). This standard requires proof that the employer’s decision to retaliate was directly caused by the employee’s protected activity. There must be proof that but for the employee’s protected activity, the retaliation would not have occurred. This is the standard of proof the Court applied to cases brought under the Age Discrimination in Employment Act.
  2. Mixed-Motive. This lower standard only requires proof that employee’s protected activity was ‘a’ motivating factor in the employer’s decision to retaliate rather than ‘the’ motivating factor.

In considering these two options, the Court analyzed the statutory framework of Title VII, and considered prior cases addressing the appropriate causation standard. Ultimately, the Court adopted the stricter standard of proof and held that “Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.”

To help employers satisfy their notice requirement, the DOL has prepared two model notices. There is one model notice for employers who offer a health plan to some or all employees, and another model notice for employers who do not offer a health plan. Employers may also use modified versions of these model notices as long as the required information is present.

Event though this case may make it harder for employees to prove unlawful retaliation, employers must still be very careful when dealing with employees who have or are engaging in protected activity under Title VII.

If you would like to learn more about potential employment-related liabilities, please view our library of online courses or contact us.

The Human Equation prepares all risk management and insurance content with the professional guidance of Setnor Byer Insurance and Risk.

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