On June 24, 2013, the U.S. Supreme Court issued a decision that could very well undermine the effectiveness of many federal workplace anti-discrimination laws unless it is overridden quickly by Congress. In University of Texas Southwestern Medical Center (UTSW) v. Nassar, the Court in a 5-4 majority opinion written by Justice Kennedy held that a higher standard of proof applies to retaliation claims than that applicable to claims of discrimination. Justice Kennedy’s conclusion was based on negative inferences drawn from textual differences between two sections of Title VII of the Civil Rights Act of 1964.
As amended by the Civil Rights Act of 1991, Title VII provides that an employee can prove that his or her employer violated the law by showing that so-called “status-based” discrimination, that is, discrimination based on race, color, religion, sex, or national origin was a “motivating factor” for the employer’s adverse decision even though that decision may have also been based on other, lawful reasons. And while another section of Title VII prohibits employer retaliation in response to an employee having opposed unlawful work place discrimination, the 1991 amendments did not provide specifically that the motivating factor standard also applies to retaliation claims. Justice Kennedy concluded that because of this omission, Congress must have intended to require that Title VII retaliation claims be proven “according to the traditional principles of but-for causation,” the higher standard that the Court imposed on age discrimination claims under federal law in its 2009 decision in Gross v. FBL Financial Services. Echoing the Court’s reasoning in Gross, Justice Kennedy declared that the “text, structure, and history” of Title VII demand that to prove retaliation the employee must demonstrate “but-for” causation, which “requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful actions of the employer.”