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Supreme Court sets stricter standard for retaliation

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in Employment Law,Human Resources

The Supreme Court on June 24 ruled that employees can only win retaliation lawsuits if they can prove that their employer retaliated solely because of the employee’s protected activity. The 5-4 decision in University of Texas Southwestern Medical Center v. Nassar was another significant victory for employers that should limit liability—and could lead to fewer retaliation lawsuits.

The questions before the Court:

  • Must an employee prove his protected status or activity was the only reason he suffered retaliation? That’s the “but-for” standard: But for the protected status or activity, would the employer have retaliated?
  • Or, can protected status or activity be just one of many motives for the retaliation? That’s a “mixed-motive” argument.
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The case: Dr. Naiel Nassar, a Muslim physician at the University of Texas Southwestern Medical Center, complained that his boss subjected him to unreasonable scrutiny because of religious and ethnic bias.

Meanwhile, Nassar wanted out. He got a new job at Parkland Hospital in Dallas, which has a close relationship with Southwestern Medical Center. After accepting the offer, Nassar sent a letter to Southwestern Medical Center attributing his departure to “the continuing harassment and discrimination against me by [the supervisor].” Word of the letter quickly spread at both the university hospital and Parkland.

A few days later, Parkland withdrew its employment offer, leaving Nassar unemployed. He sued, alleging Southwestern Medical Center had arranged to have the offer pulled in retaliation for Nassar’s bias complaints. A jury awarded him more than $3 million in damages.

The hospital appealed to the U.S. Supreme Court, arguing that the judge should have told the jury that Nassar had to prove that he never would have suffered retaliation if he hadn’t complained about bias.

The Supreme Court agreed. Justice Anthony Kennedy’s majority opinion stated that an employee “must establish that his or her protected activity was a but-for cause of the alleged adverse action.” The Justices sent the case down to a lower court for resolution. (University of Texas Southwestern Medical Center v. Nassar, 12-484, U.S. Supreme Court, 2013)

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