The Supreme Court in a predictably divided 5-4 decision heightened the proof requirements for a successful retaliation claim under Title VII in University of Texas Southwestern Medical Center v. Nasser issued this date. Justice Kennedy joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito wrote the Court's majority opinion. Justice Ginsburg joined by Justices Breyer, Sotomayor and Kagan dissented.
The upshot of the Court's ruling is as follows:
Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.
This ruling, while producing consternation in some quarters and while it will result it some meritorious claims being thrown out before trial by pro-corporation judges skeptical of if not hostile to any claim having to do with employment discrimination, essentially aligns caselaw under Title VII with the proof standard applicable to both discrimination and retaliation claims under Kentucky law. Juries can figure out when somebody's done wrong, although they might likely take pause at contemplating the byzantine instructions they will receive in federal cases presenting both discrimination and retaliation claims and offering different proof standards.
Of greater concern is the Court majority's overt hostility toward employment discrimination and retaliation claims and its unabashed expression of sympathy for corporate and business interests. After wading through statutory text and the usual legal analysis steps, the Court expresses alarm about the growing number of retaliation claims and states its purpose and intent:
In addition lessening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment. Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation. If [the employee] were to prevail in his argument here, that claim could be established by a lessened causation standard, all in order to prevent the undesired change in employment circumstances. Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage. It would be inconsistent with the structure and operation of Title VII to so raise the cost, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent. Yet there would be a significant risk of that consequence if respondent's position were adopted here.
The Court does not explain the basis for its conclusion regarding a "significant risk of that consequence" but the Court majority clearly wishes to do what it can to limit the scope of Title VII, encourage the dismissal of claims by the lower courts and generally protect corporate and business interests. As Justice Ginsburg points out in her dissenting opinion, "the Court has seized on a provision adopted by Congress as part of an endeavor to strengthen Title VII, and turned it into a measure reducing the forece of the ban on retaliation.
Robert L. Abell
www.RobertAbellLaw.com
