Supreme Court Signals Potential Paradigm Shift by Raising Bar for Retaliation Claims

08 July 2013 Labor & Employment Law Perspectives Blog

As part of a busy fall term in which it issued several decisions with important implications for employers across the country, the US Supreme Court also recently made it more difficult for plaintiffs to prove retaliation claims under Title VII. In the recent case of University of Texas Southwestern Medical Center v. Nassar, the Court clarified causation standards governing claims where employees claimed to have suffered adverse employment actions in response to complaints of unlawful behavior to the employer or other types of protected activity. In doing so, the court signaled a potentially significant shift in causation standards affecting of a broad range of anti-retaliation statutes, including the Sarbanes-Oxley Act (SOX), as well as other employment statutes that also retaliation provisions, such as the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act. What is the significance of Nassar? We suggest the following:

Heightened Causation Standards
As employers well know, poor-performing employees sometimes seek to immunize themselves from adverse employment actions by complaining of unlawful behavior to their employer. If the employer disciplines or fires a poor-performing employee and a lawsuit ensues, litigation will revolve around what motivated the employer — the employee’s poor performance or the employee’s complaint of unlawful behavior. And what does the employee have to establish to maintain a viable claim?

Nassar answers this question by requiring the employee to prove her complaint of unlawful behavior was the, or “but for” motivating reason — rather than just one of many reasons — for the employment action taken against the employee. This heightened standard should make it more likely for employers to succeed on a motion for summary judgment or at trial, particularly where there is strong evidence of legitimate motives (e.g., poor performance reviews, disciplinary actions) to pit against the employee’s allegation of retaliatory motive.

Narrow Ruling, Broader Impact?
The Nassar ruling heightened the standard for anti-retaliation claims under Title VII only (thereby bringing it in line with the standard for retaliation and discrimination claims under the Age Discrimination in Employment Act. But the Court’s reasoning will likely be applied more broadly to other employment-related statutes that do not expressly allow for anything other than a “but for” causation standard, including SOX and the ADA, because these statutes contain the same language structure that formed the basis of the Nassar ruling. As a consequence, unless or until Congress amends the relevant language in each of the statutes, the “but for” standard adopted in Nassar arguably applies.

Friendlier Legal Standards Should Not Change Employer Best Practices
Practically speaking, the fact that a higher causation standard now applies to retaliation claims should not affect what employers are currently doing. Robust anti-retaliation measures are still essential. If anything, the Nassar decision underscores the pivotal role that consistent documentation of employee performance problems plays in a later lawsuit. Solid, written evidence of performance problems (or other legitimate reasons for taking action against an employee), will make it difficult for an employee to establish that purported protected activity was the exclusive cause for an allegedly retaliatory action.

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