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Passage of POWADA Imperative

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.”

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.