Victories for Employers at the Supreme Court Level, cont.

On June 25, 2013, the Supreme Court, in the second big win for employers, clarified what standard employees must meet to successfully pursue a retaliation claim under Title VII of the Civil Rights Act of 1964. No longer will employees be able to prevail on retaliation claims just by demonstrating that retaliation was a “motivating factor” in an employer’s adverse employment action towards the employee.

The case decided was styled University of Texas Southwestern Medical Center v. Nassar. The plaintiff, Nassar, was hired by the University of Texas Southwestern Medical Center (“UTSW”), but resigned after one of his supervisors allegedly made remarks about his productivity and national origin.  He then sought a job at another hospital, but that hospital withdrew its job offer to Nassar after one of his former UTSW supervisors opposed the hire.  Nassar then sued UTSW, alleging discrimination and retaliation.

A jury found for Nassar on both claims, but UTSW appealed to the U.S. Court of Appeals for the Fifth Circuit. At the appellate level, it was concluded that the evidence of discrimination was insufficient, but that there was enough evidence to prove retaliation was a “motivating factor” for UTSW’s alleged action of discouraging another hospital from hiring Nassar.

The question presented to the U.S. Supreme Court was what standard of proof applies in Title VII retaliation cases.  In the Civil Rights Act of 1991, Congress had amended Title VII to say that an employee could establish a discrimination claim by merely demonstrating that race, color, religions, sex or national origin was a “motivating factor” in any adverse employment action.  However, the Supreme Court held in Nassar that said standard only applied to claims of discrimination, not retaliation claims. Thus, retaliation claims are still subject to the traditional “but for” causation standard, a tougher burden of proof for plaintiffs. In other words, a plaintiff must prove that “but for” the fact that he or she alleged harassment/discrimination (by filing a claim, lodging a complaint, etc.), his or her employer would not have taken an adverse employment action. 

In its Opinion, the Court explained that retaliation claims are being filed with an “ever-increasing frequency” and that their decision to implement the “but for” standard makes practical sense. For employers, it makes practical sense to always document any reasons that certain actions are being taken against employees so that they can be presented in the event a discrimination or retaliation case arises.

The employment law attorneys at McBrayer have extensive experience in defending employers across the Commonwealth against claims filed by current and former employees, and in advising employers on what steps it can take to minimize its risk of such claims and maximize its ability to defend the same. If you are an employer and would like to speak with an attorney or have questions about these recent Supreme Court decisions, give us a call.

Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reached at or at (859) 231-8780.

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

Article originally appeared on McBrayer’s Employment Law blog, 

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Ryan Colleen Daugherty is an associate and member of the firm's Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She joined the firm in 2008 after graduating from the University of Kentucky College of Law and the University of Georgia College of Environmental Design. In addition to her law practice, she is a LEED AP BD+C, and a member of the Board of Directors of the U.S. Green Building Council's Kentucky Chapter, serving as its Legislative Task Force Chair. She is also a LFUCG Greenspace Commissioner and volunteers on various civic organizations such as Bluegrass Tomorrow, Race for Education and Girls on the Run. She recently was selected in 2010 as a Lexington Young Professionals Association Rising Star, and as one of five Emerging Leaders chosen to attend the 2010 Louisville and Lexington Chamber's joint Leadership Expedition.

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