Standard is raised for proving claims of workplace retaliation

Retaliation claims against employers have risen significantly over the past several years and are now the most common type of charge filed with the U.S. Equal Employment Opportunity Commission. In 2012, a total of 37,836 retaliation claims were filed with the EEOC, making up more than a third of all charges received by the agency.

While retaliation charges are still a real threat for employers, a recent U.S. Supreme Court decision may make it more difficult for employees to prove retaliation under Title VII of the Civil Rights Act.

In the case University of Texas Southwestern Medical Center v. Nassar, the Supreme Court considered whether employees need to prove retaliation: (a) by showing that their decision to notify their employer of possible discrimination was a motivating factor in the employer’s decision to take adverse action against the employee or (b)  by proving that the employer wouldn’t have taken adverse action if it hadn’t been for retaliatory intent (referred to as the “but-for” standard — i.e., in the Nassar case, the court ruled that the employee needed to establish that he would have been hired but for the protected activity of filing a constructive discharge claim).

While the plaintiff in the Nassar case relied on the motivating factor test to prove retaliation, the Supreme Court pointed out that in the language of Title VII, the motivating factor standard is used specifically in relation to discrimination. To win a discrimination claim, an employee only needs to prove that race, color, religion, sex, or national origin was a motivating factor in an employer’s decision to take adverse action against him or her.

However, the Supreme Court ruled that this portion of Title VII is separate from the section of the statute that deals with retaliation. By a narrow margin of 5-4, the high court ruled that employees would need to satisfy the more stringent but-for standard to prove a retaliation claim. This decision may make it more difficult for employees to successfully pursue retaliation claims.



Is this where it ends?

The Supreme Court’s decision rejects EEOC guidance that previously required that retaliation be only a motivating factor for an employer’s adverse action. The decision is also part of a long history of disagreement between the court and Congress regarding the interpretation of Title VII, with Congress overturning several of the court’s restrictive interpretations of the law.

The four dissenting Supreme Court justices strongly disagreed with the verdict, with Justice Ruth Bader Ginsburg even using a portion of her dissent to call on Congress to overturn the majority decision.

The key to remember is that while employees can win claims of discrimination by proving that discrimination was a motivating factor in an employment decision, a recent Supreme Court decision holds employees to a higher standard for retaliation claims.

Katie Loehrke is a human resources subject matter expert and editor with J. J. Keller & Associates, Inc. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter. 

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