University of Texas Southwestern Medical Center v. NASSAR
On June 24, 2013, the U.S. Supreme Court issued an opinion in University of Texas Southwestern Medical Center v. Nassar, (2013) 570 U.S. ___.In this opinion, the Supreme Court held that employees claiming retaliation must prove “but-for” causation (the retaliatory action would not have occurred “but for” discrimination). This distinguishes retaliation claims from other discrimination claims where it is enough to show that discrimination was “a motivating factor” in the employment action. This is a positive development for all employers facing retaliation claims under Title VII.
Plaintiff Naiel Nassar, was an employee of the University of Texas, Southwestern. He felt he was poorly treated by his supervisor, Dr. Levine, and solicited successfully a position at Parkland Memorial Hospital, which was affiliated with the university. He then resigned from the University, and sent a letter of resignation to Dr. Levine’s supervisor (Dr. Fitz) in which he claimed discrimination by Dr. Levine, who had been his supervisor. Before plaintiff started his position at the hospital, a humiliated Dr. Fitz interfered and the employment offer to Dr. Nassar was withdrawn by Parkland Memorial Hospital.
Dr. Nassar filed two Title VII claims: (1) status based discrimination action against the university, alleging Dr. Levine discriminated against him during his employment, and (2) retaliation action against the university, based upon Dr. Fitz’s interference which caused the job offer to be rescinded. Only the retaliation claim was at issue in the Supreme Court.
The Court decided whether proof of retaliation, as distinct from proof of discrimination, is subject to the “but for” standard of proof or whether the reduced standard applied to discrimination cases of motivating factor as set out in 42 U.S.C. §2000e–2(m):
“[A]n unlawful employment practice is established when 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.”
“[A] motivating factor” represents a lower burden of proof than but-for causation does, because a Plaintiff may recover if the unlawful basis for an employment practice motivated the practice even if the practice would have occurred without that motivation.
The opinion for the court by Justice Kennedy establishes a distinction between status-based discrimination claims and allegations that an employer retaliated against the employee for engaging in protected activity. After Nassar, employees claiming retaliation must prove but-for causation; a showing that retaliation was “a motivating factor” is not enough.
The fact that the Supreme Court’s decision rested on a structural feature of Title VII, the absence from the retaliation provision of the “motivating factor” language found in the status based discrimination provision of Title VII, is critical. Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. ___ (2013), Slip Op., at 11. It means that the California Fair Employment and Housing Act (FEHA) may be interpreted differently.
California has its own parallel antidiscrimination provision in FEHA, California Government Code §12940(h). FEHA does not have the same structural feature relied upon by the Supreme Court, so while California courts attempt to interpret FEHA consistent with Federal antidiscrimination law, they may not follow the decision in Nassar, as it relates to retaliation claims. A state cannot apply a standard lower than the Federal laws require but can apply stronger or greater protections and standards of proof at their discretion as long as they do not violate Federal laws and regulations or constitutional rights.
In California there is no case definitively addressing retaliation claims, as distinct from status based discrimination claims. Until California courts of appeal address the issue, the standard of proof will be set on a case by case basis at the trial court level, and counsel should seek to determine the trial judge’s likely ruling as part of evaluation of a retaliation case.
Graham Cridland is an associate in the Sacramento office.