Not long ago, the U.S. Supreme Court made it harder for employees to prove retaliation under Title VII anti-discrimination provisions. It did this by making employees prove that the desire for retaliation was the “but-for” reason for termination, demotion or other punishment.
In other words, if the employer had another reason for its decision that also played a part in the adverse employment decision, the employee loses the case.
But under the New York City Human Rights Law (NYCHRL), employees need only prove retaliation was an important motive, not the only one.
Recent case: Gary was terminated from his position as a bus maintenance supervisor for the Metropolitan Transportation Authority (MTA), allegedly in retaliation for telling investigators that he previously reported finding a bus roster with Nazi symbols written on it. Gary alleged that his supervisor didn’t do anything about it.
He sued for retaliation under both Title VII and the NYCHRL, claiming he was fired as punishment for his report. A jury agreed after the judge told them retaliation only had to be “a motivating factor” in his discharge. It awarded Gary over $350,000 in lost wages.
Meanwhile, a few days later the U.S. Supreme Court said in order to prevail, employees have to prove that retaliation is the “but for” reason for an employer’s action, rather than just a motivating factor. The court reversed that part of the decision since the employer had presented evidence it fired Gary in part because it believed he had falsified company records.
But the court said the same evidence standard didn’t apply to NYCHRL retaliation cases. Gary got to keep the $350,000—plus the MTA had to pay almost $100,000 in attorneys’ fees. (Sass v. MTA Bus Company, No. 10-CV-4079, ED NY, 2014)