What is the Causation Standard for Title VII Retaliation Claims?
The U.S. Supreme Court recently clarified that but-for causation is necessary for retaliation claims under Title VII of the Civil Rights Act of 1964 in University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (U.S. June 24, 2013).
Title VII prohibits employers from discriminating against applicants or employees on the basis of race, sex, color, religion, or national origin. See 42 U.S.C. § 2000e-2(a). The anti-retaliation provision of Title VII prohibits employers from retaliating against an applicant or employee because “he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” See 42 U.S.C. § 2000e-3(a).
In Nassar, the Court held that an employee must prove but-for causation to establish a retaliation claim under Title VII. This means that the employee must prove that the employment action challenged as retaliatory would not have occurred “but for” the employee’s protected activity. It is not sufficient to show that retaliatory motive was one of other lawful motives for the challenged employment action.
The requirement of but-for causation for retaliation claims under Title VII is different from the causation standard for discrimination claims under Title VII. For a discrimination claim, a plaintiff need not prove but-for causation, but instead may prove discrimination based on “mixed motives.” For a discrimination claim, it suffices for the plaintiff to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives for the decision. The but-for causation standard that the Nassar Court held applies to retaliation claims makes it more difficult for employees to prove Title VII retaliation than Title VII discrimination.
Takeaways: The decision in Nassar is good for employers because it applies a higher standard of causation for Title VII retaliation claims than applies to Title VII discrimination claims. Nonetheless, it remains a good idea for employers to structure their policies and practices to avoid retaliation claims if at all possible.