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US Supreme Court Clarifies Causality Standard for Retaliation Cases

Employee charges and lawsuits for discrimination under federal law frequently go hand-in-hand with allegations of retaliation. These types of charges can be particularly damaging to employers from a public relations perspective because they are almost always premised upon allegations of deliberate and premeditated action by the employer. They are also a threat legally because they create an independent basis for liability even if the underlying discrimination claim fails. They also make an award of punitive damages much more likely.

Perhaps because of the prevalence of these types of claims, the United States Supreme Court has recently taken steps to clarify the standard of causation a claimant must establish to prevail on a claim of employer retaliation through its decision in University of Texas Southwestern Medical Center v. Nassar.

  • Beginning with the establishment of an independent cause of action for employment discrimination through the Civil Rights Act and subsequent legislation, courts typically applied a “but for standard of causality. This essentially required that in the absence of a discriminatory motive, the adverse employment action would not have occurred. The same applied to claims for retaliation.
  • In 1989, the Supreme Court relaxed this standard through its decision in Price Waterhouse v. Hopkins. There the Court held that an employee need only show that discrimination or retaliation was a “motivating factor.
  • In 1991, Congress amended the relevant statutes to adopt the Supreme Court’s “motivating factor test. However, the language used appeared to apply only to claims for employment discrimination and not to retaliation charges.

In Nassar, a sharply divided Supreme Court determined that Congress had not intended to extend the more lenient “motivating factor standard of causation to retaliation claims. Therefore, it is no longer sufficient for employees to show the mere presence of a retaliatory motive. They must show that retaliation was the actual cause of the adverse employment actions they experienced. This is an important consideration for employment discrimination lawyers on both sides of this type of litigation.

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