Supreme Court Makes it Harder to Prove Retaliation Under Federal Law

Last week, in University of Texas Southwestern Medical Center v. Nassar, the United States Supreme Court ruled there is a higher burden for an employee to prove his or her employer retaliated than to prove it discriminated under Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits employers from discriminating against their employees based on their race, color, religion, sex, or national origin. It also prohibits companies form retaliating against employees because they opposed, complained about, testified about, or otherwise pursued a claim of discrimination or harassment.

Supreme Court and Retaliation.jpgThe Civil Rights Act of 1991 makes it clear that an employee can prove a Title VII discrimination claim if she proves her race, color, religion, sex, or national origin was a “motivating factor” in the employer’s decision to take a negative employment action toward her even if the company considered other lawful factors in making its decision. If an employee meets this requirement, the company still can avoid paying damages if it proves it would have made the same decision even without considering the illegal factor. The question in the Nassar case was whether the same standards apply to retaliation claims.

Several years ago, the Supreme Court ruled that since the Civil Rights Act of 1991 only amended Title VII, claims under the Age Discrimination in Employment Act (ADEA) do not follow the same motivating factor test. Instead, employees bringing cases under the ADEA have to prove the treatment they experienced would not have occurred but for their age. It is considered significantly more difficult to prove an employer’s decision would not have happened but for your age than it is to prove your age was a motivating factor in the company making that decision.

In Nassar, the Supreme Court ruled that since the Civil Rights Act of 1991 only mentions discrimination based on race, color, religion, sex and national origin when it created the motivating factor test, that test does not apply to retaliation claims. Instead, an employee trying to prove a retaliation claim under Title VII has to prove he or she would not have been fired, demoted, or otherwise treated worse but for his or her objection or complaint about discrimination.

Notably, the Court noted the number of retaliation cases being filed is increasing. It indicated that the number of such cases filed with the Equal Employment Opportunity Commission (EEOC) almost doubled between 1997 and 2012, to the point that the only type of case filed more frequently with the EEOC are race discrimination claims.

Fortunately, New Jersey and New York State have not adopted this heightened burden of proof in retaliation cases, and in my opinion neither state is likely to do so at any time soon. Rather, at least for now, both states only require employees to prove their objection or complaint about discrimination was a motivating factor in the company taking an adverse action against them. Nonetheless, it is part of a disturbing trend in which the Supreme Court is slowly making it more difficult for employees to enforce their legal rights. In fact, as discussed in a previous article, on the same day Nasser was decided the Supreme Court also Limited the Definition of a “Supervisor” under Title VII.