U.s. Supreme Court Clarifies the Plaintiff’s Burden of Proof in Title Vii Retaliation Actions
| Jurisdiction | United States,Federal |
| Citation | Vol. 83 No. 1 Pg. 24 |
| Pages | 24 |
| Publication year | 2014 |
Alan Rupe, Jason Stitt, and Mark Kanaga
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In courts across the country, lawyers have had to deal with single-motive and mixed-motive statutory language in employment discrimination and retaliation lawsuits. Time and time again, lawyers have argued over the language to be used in jury instructions regarding what level of causation each party must prove to show discrimination and retaliation or the lack thereof. “But for, ” “a ____ motivating factor” or “because of” are the words and phrases most frequently bandied about, between arguments over whether the jury should shift burdens of proof back and forth between the parties at various points in deliberations.
This past term the U.S. Supreme Court issued an opinion that will put an end to those arguments in retaliation claims brought under Title VII of the Civil Rights Act of 1964. The Court held that Title VII retaliation claims are subject to the more-restrictive “but for” causation standard, as opposed to the less-demanding “motivating factor” standard that applies to Title VII discrimination claims.
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I. A Retaliation Case Study
Consider the following mythical (but true-to-life) situation.
Meet Frank Hazard, a relic of yesteryear’s Mad Men era. Frank has been on the board of directors for the Manufacturing Company of America for the past 20 years for really one reason: he loves the annual Board meetings, always held at a warm-weather resort with a nice golf course. Frank frequently makes comments now considered politically incorrect, but everyone knows Frank is harmless and that his jovial comments are simply a way to break the ice in tense situations.
In our hypothetical case, several years ago, Frank participated in a board meeting convened to discuss a reduction in force affecting middle managers within the company’s Fargo, N.D., office. The discussion included the need to make a decision to retain one of two assistant managers. Cindy, an employee with marginal performance reviews who had filed a sexual harassment complaint against the company three weeks earlier, or Jim, a recent college graduate with obvious ambitions to move up in the company, were the employees in question. During the board’s discussion, Frank joked, “Cindy can’t get as much done as Jim, probably because Jim is able to walk down the hall without getting sexually harassed.” And indeed, because Cindy does not work as efficiently as Jim, the company selected Jim for retention and Cindy for lay-off.
Now fast forward. Cindy has talked with an attorney who told her that the “temporal proximity” (or short length of time between her complaint of sexual harassment and her termination) would give her a great case of retaliation. The attorney warned Cindy, however, that she faced an uphill battle in proving retaliation: everyone knew that Jim was a more efficient worker than Cindy, Cindy routinely received poor evaluations, and temporal proximity by itself will not win a retaliation case. Cindy filed her lawsuit against the company.
Remember Frank and his jovial comments? During a board member’s deposition, Cindy’s attorney asked about the board’s discussion of who to retain and who to lay off. The board member remembered Frank’s joke and testified, “I assumed Frank was joking, ” but “couldn’t be entirely sure” because that would “require me to speculate, and I’m not supposed to speculate during my deposition.”
Frank was also deposed. He admitted making the comment, but testified, “Everybody knew I was joking.” When asked why he voted to retain Jim and lay off Cindy, he answered, “I don’t remember.” After his deposition, Frank resigned from the board.
As for the lawsuit, Cindy’s attorney knew two things. First, it is unlikely that every board member voted to retain Jim because he, unlike Cindy, “can walk down the hall without getting sexually harassed.” But second, there is strong evidence that Frank, who provided no other reason, did vote to retain Jim because of Cindy’s sexual harassment complaint.
The critical question is now: Did Frank’s retaliatory animus make any difference in the vote? Perhaps enough board members knew of Cindy’s performance issues to carry the day in any event. Perhaps some of the board members were really impressed by Jim. Or perhaps several board members did not really care who the company retained and made it their practice to vote however Frank voted. And you thought the law and Rules of Evidence prohibited juries from considering speculation? The most important question in this case can now only be answered by asking: what would have happened if Frank were not in the boardroom that day.
II. The Supreme Court’s Nassar Decision
The U.S. Supreme Court has now decided who must prove what in such a case of mixed motives. In the case of University of Texas Southwestern Medical Center v. Nassar, [1] the Court held that employees like Cindy will face the task of proving that a decision-maker’s retaliatory animus made a difference in the employment decision. Thus, it is not sufficient for a Title VII retaliation plaintiff to simply show that retaliatory animus was a motivating factor, and then shift the burden to the employer to show it would have made the same decision anyway. The ruling followed the [26] Court’s 2009 decision in Gross v. FBL Financial, [2] which held that a plaintiff bringing a claim under the Age Discrimination in Employment Act likewise must show that he or she would not have suffered an adverse employment action but for his or her age—in other words, age was the factor that made a difference.
A. History of the Mixed-Motive Standard
Nassar has been 25 years in the making, beginning with a landmark Supreme Court opinion in 1989 that embraced the “mixed motive” standard in Title VII discrimination cases. The journey was further shaped by congressional intervention, circuit court rulings, changes to the membership of the Supreme Court, and all sorts of new- and old-fashioned politics.
1. Price Waterhouse v. Hopkins
To begin at the beginning, let’s return to the past and the Supreme Court’s decision in Price Waterhouse v. Hopkins[3] in 1989. There, the Court recognized a “motivating factor” causation standard to be applied in a very narrow range of Title VII cases. Proceeding from the premise that “Title VII meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations, ” a plurality of justices held that “when a plaintiff . . . proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s gender into account.”[4]
Price Waterhouse described the difference between the mixed- and single-motive theories as follows:
In [single motive] cases the issue is whether either illegal or legal motives, but not both, were the ‘true’ motives behind the [employment] decision. In mixed-motive cases, however...
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