Justice Ruth Bader Ginsburg, in her dissenting opinion that was joined by three other justices, pointed out that in prior cases the Court has declared that effective protection against retaliation is essential to achieve the goal of a discrimination-free work place because “fear of retaliation is the leading reason why people stay silent about discrimination that they have encountered or observed.” She also took issue with the majority’s rejection of the longstanding position of the EEOC, the federal agency charged with enforcement of Title VII, that the motivating factor standard applies to retaliation as well as status-based discrimination. To the contrary, she rightly declared that the but-for causation standard “permits proven retaliation to go unpunished,” just as the EEOC has long recognized.
This unfortunate decision emphasizes the need for Congress to enact quickly the Protecting Older Workers Against Discrimination Act, first proposed in October 2009 in reaction to the Gross decision, to restore the law to where it was before these decisions were handed down and, perhaps more importantly, before they prompt even more egregious lower court decisions in future discrimination cases. POWADA, which has not yet be reintroduced in this Congress, would overturn Gross as well as Nassar by rejecting the but-for causation standard and restoring the motivating factor standard for employment discrimination and retaliation cases arising under Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act of 1973.
While the enactment of POWADA will certainly not cure all of the injustices inflicted upon employees by the Supreme Court over the years, it would it would be a significant step in the effort to re-level the playing field of workplace civil rights laws.