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U.S. Supreme Court Weakens Worker Protections

In 2009 the Court ruled in Gross v. FBL Financial Services, Inc., that persons complaining of workplace bias under the Age Discrimination in Employment Act (ADEA) have to meet a higher standard than most persons asserting bias on grounds of race, sex, nation origin or religion.  Now the Court extended the burdens imposed in Gross to cases of retaliatory discrimination in employment.


In University of Texas Southwestern Medical Center (UTSW) v. Nassar, the Court held that a higher standard of proof applies to retaliation claims than to claims of discrimination.  That conclusion was based on 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 workplace discrimination, the 1991 amendments did not provide specifically that the motivating factor standard applies to retaliation claims.  The Court, by a 5-4 vote, 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 it’s reasoning in Gross, the Court 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 acknowledged 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 conclusion defies logic,” wrote the minority. “Indeed, the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers. Today’s misguided judgment, along with the judgment in Vance v. Ball State should prompt yet another Civil Rights Restoration Act.”

AARP  along with a variety of civil rights organizations had filed a friend-of-the-court brief arguing that imposing a tougher proof standard for Title VII retaliation claims than for Title VII discrimination claims runs completely counter to the intent, purpose, and statutory language of Title VII. The brief further argues that Gross was decided under the ADEA, not Title VII, and its second-class approach to mixed motives cases should not be extended to a portion of another statute.

What’s at Stake

Subjecting aggrieved workers to arbitrary and unreasonably high standards guts the very core of federal and state civil rights laws, which were enacted in recognition of the need to give the actual victims of discrimination the tools to fight it. A right is worthless if you can’t enforce it.

Case Status

University of Texas v. Nassar was decided by  the U.S. Supreme Court.