By Sylvia Hsieh
A U.S. Supreme Court ruling earlier this summer will slow down an area of employment litigation that has been on the rise for years — claims that an employer retaliated against a worker for complaining about discrimination.
Management-side attorneys applauded the June 24 ruling, which imposed a tougher standard for proving retaliation under Title VII.
“Defense attorneys are very, very pleased with this decision, especially in this day and age when the trajectory of retaliation claims is straight up at a 90 degree angle,” said Steven J. Pearlman, a partner at Proskauer in Chicago who heads the whistleblower and retaliation law group.
Lawyers who represent employees agreed that the new standard will make it harder to get to a jury.
“I think it’s going to deter a lot of meritorious claims and leave employers with a get-out-of-jail-free card to come up with whatever excuse” for firing an employee, said Brian P. Lauten, a partner in the Dallas office of Sawicki & Lauten LLP, who represented the worker in the case.
Instead of proving that retaliation was merely a motivating factor in an employment decision, such as a firing or demotion, a worker must now prove that “but for” the retaliation, the employer would not have made the decision.
Easier to get summary judgment
Employers are expected to start filing summary judgment motions immediately in light of the decision.
“A but-for standard is much, much more difficult,” said Vincent Cino, chairman of Jackson Lewis in Morristown, N.J., who represents employers.
“You’re going to see a lot more employers taking the position that employees have to prove the sole cause of an employment decision was unlawful animus,” said Lauten. “It’s a much harder burden of proof because an employee doesn’t know what’s in the employer’s head.”
According to Sandra Sperino, an employment law professor at the University of Cincinnati College of Law, the “but for” standard does not mean that the plaintiff has to prove there is only one reason for the decision.
“Plaintiffs’ lawyers should be prepared to start distinguishing the ‘but for’ standard from sole causation,” said Sperino, who filed an amicus brief in the case.
The stricter standard will require that plaintiffs have either a better quality or a better quantity of evidence of retaliation than before, said R. Scott Oswald, managing principal of The Employment Law Group, a Washington-based law firm that represents employees.
Better quality evidence might be direct evidence, such as an email indicating the worker was fired because the employer was unhappy with the worker’s discrimination complaint; a better quantity of evidence might be more evidence that the employer’s stated reason for its decision was pretext for discrimination, Oswald said.
But Pearlman said the but-for standard is such a high standard that most plaintiffs will not get by summary judgment.
“Before this decision, plaintiffs often claimed that even if retaliation played a very small role in the reason why an employee was let go, even if there was a tinge of retaliation, that was really enough. The Supreme Court is saying absolutely not,” Pearlman said.
“Employers always have a factual scenario that ‘I took this action because the employee wasn’t coming to work or wasn’t sending in reports or was tardy in getting to the office.’ There’s a whole factual scenario from the employer’s side to suggest there are other reasons why an employment action was taken besides because the worker filed this complaint,” said Cino.
Steven Andrew Smith, a partner in the Minneapolis office of Nicholas Kaster who represents employees, said he expects to see more plaintiffs’ lawyers file retaliation claims under state anti-discrimination statutes or file in state court, thereby avoiding the tougher standard under Title VII altogether.
Mixed-motive gets nixed
The employee in the case, Dr. Naiel Nassar, claimed his supervisor discriminated against him on the basis of his Arab ethnicity and Muslim religion by claiming he was not working hard enough and stating that “Middle Easterners are lazy.” He resigned in a letter that complained about the supervisor, and his job offer at the hospital’s clinic was rescinded. He sued for constructive discharge and retaliation under Title VII.
A jury found for Nassar on his job discrimination claims as well as his mixed-motive retaliation claim, finding that retaliation was a motivating factor despite the hospital’s claim that he was not qualified for the clinic job.
The 5th U.S. Circuit Court of Appeals agreed that retaliation claims under Title VII only require a showing that retaliation was a motivating factor, not that the harm would not have occurred “but for” the retaliation.
But the Supreme Court disagreed, applying a higher standard to retaliation claims than to discrimination claims grounded in the employee’s status.
“Title VII retaliation claims must be proved according to traditional principles of ‘but for’ causation, not the lessened causation test stated in [the statute],” wrote Justice Anthony Kennedy for the majority. “Title VII’s antiretaliation provision, which is set forth in §2000e-3(a), appears in a different section from Title VII’s ban on status-based discrimination. …
“As actually written, … the text of the motivating-factor provision, while it begins by referring to ‘unlawful employment practices,’ then proceeds to address only five of the seven prohibited discriminatory actions — actions based on the employee’s status, i.e. race, color, religion, sex and national origin. This indicates Congress’ intent to confine [the motivating-factor] provision’s coverage to only those types of employment practices. The text … says nothing about retaliation claims,” Kennedy wrote.
In addition to interpreting the higher standard, the court noted that retaliation claims are “being made with ever-increasing frequency” and that “lessening the causation standard could also contribute to the filing of frivolous claims.”
Four dissenters, led by Justice Ruth Bader Ginsburg, complained that the majority creates a confusing dual standard for juries — one legal standard for discrimination claims and another for retaliation claims, even though the two claims are “tightly bonded” to each other.
Lawyers say that even those retaliation cases that make it to a jury will be harder to win.
“It’s nice to be able to tell a jury, ‘Hey, look at this high burden,’” said Pearlman.
Juries will have to be instructed on different burdens of proof for a discrimination claim as opposed to a retaliation claim.
“It’s not going to make any sense, because the discrimination and retaliation are all part of the same nucleus of facts, but the jury will be instructed on two causation standards. It’s legally unworkable,” said Lauten. “It creates a mess.”