U.S. Supreme Court Reverses Expansion Trend And Raises The Bar For Claims Of Unlawful Retaliation In Employment

Claims of unlawful retaliation pose significant risks for companies in every industry. Indeed, of the nearly 100,000 Charges of Discrimination filed with the U.S. Equal Employment Opportunity Commission in FY2012, over 38% alleged retaliation. However, a recent decision from the U.S. Supreme Court has raised the legal standard that a plaintiff-employee must satisfy to prevail on such a claim.
In the simplest terms, unlawful retaliation occurs when an employer takes adverse action against an employee (for example, termination, demotion, or reduced pay) because the employee exercised certain legal rights or engaged in a legally-protected activity. A number of federal and state statutes prohibit retaliation against protected activities like filing an administrative Charge of Discrimination, serving as a witness in support of another employee’s Charge, or filing a workers’ compensation claim. Although an employer is certainly entitled to defend the underlying allegations, it cannot take action against the employee for filing the claim. When an employer does retaliate on this basis, it can expose the company to liability for retaliation, completely independent of the employee’s original complaint.
In its recent June 24, 2013 decision in the University of Texas Southwestern Medical Center v. Nassar, the U.S. Supreme Court raised the legal standard required to prove causation in retaliation cases under Title VII of the Civil Rights Act of1964, 42 U.S.C. §2000e, et seq. Although this heightened standard may not decrease the number of retaliation claims filed in the first instance, it should make it easier for employers to have unfounded claims dismissed before they are presented to a jury.
Like any claim involving allegedly unlawful employment action, retaliation claims require employee to demonstrate some causal connection or link between the allegedly wrongful conduct by the employer and resulting loss to the employee. In the Nassar case, the Court decided between two proposed standards to determine whether an unlawful retaliatory motive truly “caused” the termination, discipline, or other adverse action.
The first standard, known as the “but-for” standard, requires that a plaintiff show that the harm would not have occurred in the absence of, or “but-for,” the defendant-employer’s unlawful motive. The second standard called the “motivating factor” standard only requires the employee to show that the employer had mixed motives – perhaps several – that led to the action, but an unlawful motive was among them. The motivating factor test is typically applied to status-based discrimination cases under Title VII for discrimination on the basis of race, religion, gender, and the like.
Based upon the precise language of Title VII’s anti-retaliation provision and prior cases interpreting similar language in other statutes, the Court held that the more-demanding “but-for” test should be applied to evaluate retaliation claims under Title VII.
This ruling is significant because, despite its conservative reputation, a number of the Court’s recent decisions in this area were extremely protective of employee rights against retaliation, both expanding the scope of what constitutes unlawful retaliation and aggressively protecting employee rights to file suit on that basis. For example, in the 2006 case of Burlington Northern & Santa Fe Railway Co. v. White, the Supreme Court verified that unlawful retaliation is not limited to circumstances where an employee is fired or even suffers some immediate monetary loss, but can include less drastic measures such as limited disciplinary action, and even retaliatory acts outside the workplace. In White, the Court defined retaliation broadly to include any action that would “dissuade a reasonable employee” from exercising their rights.
Two years later in 2008, the Court interpreted the broad anti-discrimination prohibitions in the Age Discrimination in Employment Act and 42 U.S.C.§1981 to include anti-retaliation prohibitions. In the cases of Gomez-Perez v. Potter and CBOCS West v. Humphries, the Court held that both statutes did in fact outlaw workplace retaliation, despite the fact that neither statute contained an express provision prohibiting– or even addressing – retaliation.
That protective trend continued in the 2011 case of Thompson v. North American Stainless, where the Court confirmed that one employee can be entitled to protection for the protected activity of a co-worker. In that case, a female employee filed a gender discrimination charge against the employer, and the company terminated her fiancé, a male co-worker. Despite the fact that the terminated male engaged in no protected activity and had no involvement with the female’s discrimination claim, the Court applied the standard from White and found that the male’s termination was unlawful, “since it might dissuade a reasonable worker from making or supporting a charge of discrimination.”
The recent Nassar case is the first U.S. Supreme Court decision to limit somewhat the retaliation cause of action. Nassar does not limit the scope of what can constitute adverse action as set forth in White or Thompson, nor does it remove or limit the ability of employees to sue for unlawful retaliation. However, the Nassar decision raises the standard of proof for all retaliation claims under Title VII. This should limit claims to circumstances of clear retaliation where the protected activity was “the” cause of the employer’s retaliation, not simply “a” cause or one of many. This heightened standard should make it easier for companies to have baseless retaliation claims dismissed as a matter of law and reduce the number of claims submitted to a jury.
Despite this heightened legal standard, employers should remain alert for potential retaliation claims and must take proactive steps to prevent them. It is important to remember that many States apply their own standards to retaliation claims, so the Court’s recent pronouncement in Nassar will not affect the legal standard applicable to those claims that are based on State law.
There are a multitude of activities and rights that may be clothed in legal protection, including, for example, filing a Charge of Discrimination, serving as a witness in support of another employee’s Charge, filing a workers’ compensation claim, military and jury service, exercising FMLA rights, union organizing, and similar concerted employee activities, requesting accommodation for a disability, consulting an attorney, and the like. In order to prevent retaliation claims before they occur, it is essential that employers educate themselves and their management personnel about the various types of activities that are protected by law. Disciplinary and personnel practices must also be carefully examined to minimize this risk.
Employees who have engaged in protected activity are technically subject to the same standards of conduct and performance as their peers. However, companies must carefully consider any adverse action against an employee who has engaged in legally-protected conduct to ensure that action is motivated by legitimate non-retaliatory business concerns rather than retaliation for the protected activity. Consultation with legal counsel also can help prevent these costly and time-consuming claims.
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About the Author

Chad Willits’ practice is concentrated on employment law, admiralty and maritime law, personal injury, and general civil litigation in Ohio and Indiana. These services include drafting and implementing workplace policies and practices, management training, and overseeing internal investigations and audits. He has extensive experience and an active pre-trial, trial, and appellate practice in these areas.
CWillits@Rendigs.com |  513-381-9297