Raising the Bar: Retaliation in the wake of University of Texas Southwestern Medical Center v. Nassar

whistlehurter (1)

Sharon Mo

“[F]ear of retaliation is the leading reason why people stay silent about the discrimination they have encountered or observed.” – Justice Ginsburg in dissent[1]

Retaliation claims are now the bread and butter of employment discrimination actions. In 2014, retaliation claims brought under Title VII of the Civil Rights Act of 1964 accounted for 34.7% of all charges filed to the U.S. Equal Employment Opportunity Commission (EEOC).[2] Following a line of pro-employee decisions that afforded broad protections to plaintiffs,[3] the Supreme Court’s decision in University of Texas Southwest Medical Center v. Nassar [4] is a surprising development that has left employees scratching their heads and employers cheering. Plaintiffs are now required to prove that an employer’s adverse employment action would not have been taken “but for” an employee’s protected activity.[5] This move imports a strict tort law causation test into the market of employment discrimination, with problematic consequences. The following note aims to provide a brief summary of retaliation law, break down the Supreme Court’s decision and discuss its implications.

Title VII and The Law of Retaliation

Title VII defines an unlawful employment practice as discrimination against any individual because of their race, color, religion, sex, or national origin.[6] Within Title VII is an anti-retaliation provision that prohibits employers from engaging in adverse retaliatory action in response to an employee’s objection to a prohibited practice or participation in a Title VII investigation or proceeding.[7] To be awarded damages, the plaintiff bears the burden of proving the following elements: (1) the plaintiff engaged in or was engaging in a protected activity; (2) the employer subjected the plaintiff to an adverse employment action; and (3) the plaintiff was subjected to the adverse employment action because of his or her participation in the protected activity.[8]

Shift from “Motivating Factor” to “But-For” Standard

Addressing the third element, the issue before the Supreme Court in, was the proper standard of causation for Title VII activity-based discrimination i.e. retaliation claims. A divided 5-4 bench determined in favour of the “but-for” threshold, over the lesser “motivating factor” standard applied to status-based discrimination claims.[9] The latter is less onerous on the employee for two reasons. First, while the “motivating factor” model would only require that retaliation be one motivating factor, amongst others, for an employer’s adverse action, the “but-for” test requires that it be the cause of the adverse action.[10] The second reason is that the “but-for” threshold rests the burden of persuasion entirely on the plaintiff, who often will not have the resources to investigate the employer’s deliberations.[11] In contrast, the “motivating factor” test places the initial burden on the plaintiff to prove that his or her protected activity was a motivating factor, before shifting the burden on the defendant to demonstrate that they would have taken the adverse action even in the absence of the protected activity.

The majority opinion, penned by Justice Kennedy, presented four arguments to justify the heightened standard.[12] The first was that retaliation is not identified in 42 U.S.C. §2000e-2(m) with other types of discrimination to which the “motivating factor” standard applies.[13] Secondly, the majority interpreted that “because” equated to “but-for” causation. In other words, if an action occurs “because of” another action, then that action is “the reason” for it.[14] The third argument aligned with policy concerns regarding the high volume of frivolous retaliation charges filed in the EEOC and the resultant resource inefficiencies, if the lesser standard was to be applied.[15] The majority’s final argument was that deference to generic EEOC guidelines favoring the “motivating-factor” test was not warranted.[16]

In a rather scathing opinion for the dissent, Justice Ginsburg favored the lesser standard. Specifically, she placed the meaning of “because” in the context of a multiple-motive decision, and countered that the omission of retaliation claims from 42 U.S.C. §2000e-2(m) did not automatically exclude employers from liability.[17] Justice Ginsburg denounced the majority’s divergence from both precedent and congressional intent to strengthen anti-discrimination laws in formulating Title VII.[18] In her closing remarks, she called out the majority for their unspoken motive and “zeal to reduce the number of retaliation claims filed against employers.”[19]

The Tortification of Retaliation

Perhaps the most significant layer to the Nassar decision is the majority’s importation of a tort law standard into the employment discrimination context. The tortification of employment discrimination law is not a new phenomenon,[20]with the transplant of vicarious liability to sexual harassment cases,[21] and the adoption of proximate cause to prove employer liability for subordinate bias.[22] Justice Kennedy is explicit in his treatment of Title VII retaliation claims as “textbook tort law”[23] and indeed, the Nassar opinion reads more like a tort decision than a case of statutory interpretation.[24]

However, imposing tort law’s strict “but-for” standard on retaliation claims is ill founded for two key reasons. The first reason is that in tort, the “but-for” test considers the cause and effect of physical forces to which reasonably common-sense and scientific theories of physical causation can be applied.[25] This is quite different to the mental investigation necessary in the context of employment discrimination to establish motive.[26] As Justice Ginsburg articulates, to apply the standard is to engage in a near-impossible “hypothetical inquiry about what would have happened if the employer’s thoughts and other circumstances had been different”.[27] The inquiry also fails to expose false reasons provided by the employer or uncover hidden motives.[28] The second reason is that the “but-for” standard asks the plaintiff to prove that his or her protected activity was the sole cause for the employer’s adverse action. Even in tort, the plaintiff faces similar problems pinpointing one “but-for” cause amongst a multitude of variables. It is therefore misguided to think that at any time within the dynamic setting of workplace relations, employers take adverse action based on a solely identifiable reason. Even Congress at the enactment of Title VII commented that a “sole cause” standard would render the Act “totally nugatory”.[29] Justice Ginsburg cites Senator Case, a key sponsor of Title VII who stated that “[i]f anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of.”[30] For all Justice Kennedy’s push for the tortification of retaliation, the employment discrimination context is, by its very nature, incongruous with the “but-for” model.

What now and where from here?

All this leaves a plaintiff bringing a Title IV retaliation claim in a tricky spot. Nassar’s “but-for” threshold asks employees to retrospectively speculate about employers’ motivations at the time of their adverse action, without the resources to do so.[31] Worse, it precludes remedies to employees who cannot prove that their protected activity was the reason for the adverse action, and protects employers whose actions were only partially motivated by retaliation.[32] The high bar contradicts the public policy behind Title VII to allow employees to engage in protected activity without fear of retaliation, and to deter employers against retaliatory action.[33] It would seem that Justice Ginsburg’s dissent was right to be as charged as it was.

Since Nassar, the Supreme Court has only further qualified that “but-for” means more than “contributing” and “substantial”, and exists where the retaliatory action is the “straw that broke the camel’s back”.[34] Thus, the best way forward is to, as Justice Ginsburg suggests, call on Congress to intervene and codify the “motivating factor” test through an amended Civil Rights Restoration Act.[35] Unlike tort law, employment discrimination and Title VII are creatures of statute, and best amended by statute. To recognize the distinction between tort and employment discrimination is to recognize that the “but-for” standard is ultimately unworkable in the workplace.


[1] University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2534-35 (2013) (Ginsburg, J. dissenting).

[2] EEOC, Charge Statistics FY 1997 Through FY 2014, EEOC (2014), http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm

[3] See Burlington & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) and Thompson v. North American Stainless, LP 131 S. Ct. 863 (2011).

[4]  Nassar, 133 S. Ct. at 2517.

[5] Id. at 2533.

[6] 42 U.S.C. § 2000e-2(a).

[7] 42 U.S.C. § 2000e-3(a).

[8] United States Courts for the Ninth Circuit, Manual of Model Civil Jury Instructions – 10.3 Civil Rights—Title VII—Retaliation—Elements and Burden of Proof, United States Courts for the Ninth Circuit (2013), http://www3.ce9.uscourts.gov/jury-instructions/node/173.

[9] 42 U.S.C. § 2000e-2(a).

[10] Nassar, 133 S. Ct. at 2526.

[11] Gross v. FBL Financial Services Inc., 557 U.S. 167, 177-78 (2009)

[12] Garth E. Flygare, Title VII Retaliation Claims: But-For Causation Gets Back At Price Waterhouse In The Wake Of University Of Texas Southwest Medical Center v. Nassar, 39 S. Ill. U. L.J. 557, 563-564 (2015).

[13]Nassar, 133 S. Ct at 2526.

[14] Id. at 2527; Garth E. Flygare, Title VII Retaliation Claims: But-For Causation Gets Back At Price Waterhouse In The Wake Of University Of Texas Southwest Medical Center v. Nassar, 39 S. Ill. U. L.J. 557, 564 (2015).

[15] Nassar, 133 S. Ct. at 2531.

[16] Id. at 2533.

[17] Id. at 2546; Price Waterhouse v. Hopkins, 490 U.S. 228, 281-82 (1989).

[18] Darren Stakey, The Supreme Court’s Heightened Retaliation Standard In Nassar: A Prudent Limitation Or A Misguided Restriction To Title VII Claims? 30 TOURO L. REV. 923, 941 (2014).

[19] Nassar, 133 S. Ct. at 2547.

[20] Deborah L. Brake, Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation 75 OHIO ST. L.J. 1375, 1381 (2014).

[21]See Faragher v. City of Boca Raton, 524 U.S. 775, 780 (1998)

[22] See Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011)

[23] Nassar, 133 S. Ct. at 2525.

[24] Deborah L. Brake, Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation 75 OHIO ST. L.J. 1375, 1381 (2014).

[25] Gross v. FBL Financial Services Inc., 557 U.S. 167, 190 (2009) (Breyer, J., dissenting). 

[26] Id.

[27] Nassar, 133 S. Ct. at 2546.

[28] Matthew A. Krimski, University Of Texas Southwestern Medical Center v. Nassar: Undermining The National Policy Against Discrimination, 73 MD. L. REV. 132, 144 (2014).

[29] 110 Cong. Rec. 2728, 13837–13838 (statement of Sen. Case).

[30] Id.

[31] Matthew A. Krimski, University Of Texas Southwestern Medical Center v. Nassar: Undermining The National Policy Against Discrimination, 73 MD. L. REV. 132, 148 (2014).

[32] Id. at 147.

[33] Kimberly A. Pathman, Protecting Title VII’s Antiretaliation Provision In The Wake Of University Of Texas Southwestern Medical Center v. Nassar, 109 NW. U. L. REV. 475, 479 (2015).

[34] Timothy M. Holly, The Causation Standard For Retaliation Claims Under Employment Discrimination Statutes: Ambiguity Of “Central Importance, 15 DEL. L. REV. 71, 75 (2014) citing Burrage v. United States, No. 12-7515, 2014 WL 273243 (U.S. Jan. 27, 2014).

[35] Nassar, 133 S. Ct. at 2547.

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