Mitigating the impact of Title VII's new retaliation standard: the Americans with Disabilities Act after University of Texas Southwestern Medical Center v. Nassar.

AuthorJohannsen, August T.

TABLE OF CONTENTS Introduction I. Background A. Title VII Background B. Factual History of Nassar C. Procedural History D. Supreme Court Decision 1. Primary Textual Argument 2. Secondary Policy Arguments II. The Impact of Nassar Should Be Mitigated A. The Court's Reasoning in Nassar Strays from Previous Understandings of the Precedent 1. The Court's Assumption that Discrimination Is a Tort Is Unfounded 2. The Court's Reliance on Gross Is Unsound 3. The Court's Textual Argument Is Incorrect B. Public Policy Arguments 1. "But for" Causation Will Allow Retaliation in Many Circumstances 2. The Court Justified Its Holding with an Unconvincing and Irrelevant Slippery Slope Argument 3. The Realities of Civil Rights Litigation Demonstrate that a "Motivating Factor" Standard Would not Legitimize Frivolous Claims III. Proposed Methods of Mitigating Nassau A. Abrogate Nassar Through New Legislation 1. New Civil Rights Laws Amendments 2. New Regulations B. Distinguish Nassar from the ADA Because the ADA Is a Fundamentally Different Law than Title VII IV. Counterarguments Conclusion Introduction

The Supreme Court's 2013 decision in University of Texas Southwestern Medical Center v. Nassar imposed a heightened standard of proof for causation in Title VII retaliation claims, (1) and there is a possibility that courts could import this standard into the Americans with Disabilities Act (ADA). (2) Although Nassar, on its face, is limited to Title VII, because the ADA and Title VII have similar statutory language and goals, and because of the expansive reasoning employed by the Nassar majority, it is easy to imagine that Nassar may impact the ADA. Any effect Nassar may have on the ADA should be prevented.

Title VII prohibits employment discrimination "because of' a protected status, that is, the employee's race, color, sex, religion, or national origin. (3) Title VII also prohibits employer retaliation "because of' an employee's participation in legal proceedings against or opposition to illegal employment practices. (4) Similar "because of' language in the ADA prohibits disability discrimination and retaliation against people with disabilities. (5)

The meaning of "because of' as it relates to the principles of causation is ambiguous. In Nassar, the Supreme Court interpreted the "because of' language in Title VII to require the application of a "but for" causation standard to retaliation claims even though the "because of' language in status-based discrimination claims uses a "motivating factor" standard. (6) "But for" causation is a traditional tort rule (7) that, for a retaliation claim, requires proof that the adverse employment action would not have occurred in the absence of the employer's intent to retaliate. (8) The "but for" standard is generally understood to be substantially harder to prove than the "motivating factor" standard, (9) which requires showing only that the employer's improper motive was one factor, even if there were multiple factors in an adverse employment action. (10)

Nassar thus established a confusing paradigm in which the same actions by an employer will be analyzed differently if used to prove Title VII status-based discrimination as opposed to retaliation. The analysis may also vary if the retaliation was based on disability versus a Title VII protected status. Consider the following, greatly oversimplified hypothetical situation. (11)

Rosie has a disability. Though she occasionally shows up to work late, she is generally a good employee at the ABC Corporation. Rosie asks her male supervisor, Sam, to accommodate her disability. After making this request, she overhears Sam speaking with another male employee. Sam says, "The women in this company are so needy. Can you believe that Rosie asked me to accommodate her disability? This company would be much better without any women or people with disabilities." Later, Rosie confronts Sam and says, "I heard what you said about women and people with disabilities in the workforce. I'm going to report you!" Several days later, Sam terminates Rosie's employment, citing her tardiness as justification.

Rosie sues the ABC Corporation for discrimination because of sex under Title VII (12) and discrimination because of disability under the ADA. (13) She also claims retaliation under both Title VII and the ADA. (14) What result?

Courts would apply a "motivating factor" standard of causation to determine whether Sam's actions were "because of' Rosie's sex. (15) Most courts would apply the same "motivating factor" standard to Rosie's disability discrimination claim as well. (16) In light of this standard, Rosie probably has a colorable claim for both her Title VII and ADA discrimination claims. Based on Sam's comments, she could reasonably argue that her sex and her disability were "motivating factors" in Sam's decision to discharge her.

In contrast, the results are less predictable for Rosie's retaliation claims. Under Nassar's new "but for" standard, Rosie may have difficulty proving that her termination would not have occurred in the absence of Sam's intent to retaliate. Furthermore, whether Rosie's ADA retaliation claim will receive the same judicial treatment as her Title VII retaliation claim turns on whether courts decide to import the "but for" standard that Nassar adopted into the ADA context. This Note considers that potential difference, arguing that the causation standard for proving retaliation under both Title VII and the ADA should be the same as that for proving status-based discrimination--namely, the "motivating factor" standard, not the "but for" standard the Nassar Court adopted. (17)

In addition to showing that the Supreme Court strayed from previous understandings of the precedent when it held in Nassar that Title VII retaliation plaintiffs are required to prove "but for" causation, this Note argues that the 'Taut for" test should not be applied to retaliation claims in the context of other civil rights laws, with a particular focus on the Americans with Disabilities Act. Building on previous scholarship, this Note argues against the general application of a "but for" causation standard to discrimination claims of all kinds. (18) This Note carves out its own niche by suggesting several practical solutions to limit the potential negative effects of the Nassar holding. This Note is also the first to show how importing Nassar's "but for" causation standard into ADA retaliation claims would thwart the goals of the ADA. This is an important area of focus because the similarities between the ADA and Title VII might lead an impatient court or an unsophisticated advocate to improperly conflate the two and import Nassar's reasoning into an ADA claim, thereby unduly burdening an ADA plaintiffs civil rights. This Note contributes to the scholarship that recognizes the important differences between the ADA and Title VII, (19) and argues against a wholesale importation of Title VII doctrine into the ADA.

This Note will proceed in four parts. Part I will briefly discuss Title VII and the Nassar case. Part II will advance textual and public policy explanations for why the impact of the Nassar decision on future ADA cases should be mitigated, primarily arguing that it would be unjust and against public policy to entrench Nassar's flawed analysis by importing it into the ADA. Part III of this Note will propose two plausible and practical methods of mitigating the impact of the Nassar case on future ADA and Title VII cases: (1) abrogating the Nassar decision through legislative action or (2) judicially distinguishing Nassar from the ADA context, cabining its analysis to Title VII. Part IV will address potential counterarguments. By adopting this Note's proposals, courts and Congress would promote the principles of clarity, consistency, and justice in Title VII and the ADA.

  1. Background

    1. Title VII Background

      Title VII is one of eleven titles of the landmark Civil Rights Act of 1964. (20) Title VII prohibits discrimination by employers on the basis of race, color, religion, sex, or national origin. (21) Generally, an employer is defined as "a person engaged in an industry affecting commerce who has fifteen or more employees" for a significant portion of the year. (22) In addition to prohibiting status-based discrimination, Title VII also prohibits retaliation, which it defines as discrimination against an employee because the employee opposed an employment practice made unlawful by Title VII or made a charge of unlawful employment practices. (23) The "because of' language has proven to be both important and contentious in the litigation history of Title VII. (24) In Price Waterhouse u. Hopkins, the Court decided that "because of' should be interpreted broadly to establish a "motivating factor" causation standard. (25)

      In the Price Waterhouse decision, six Justices agreed that a plaintiff proves his or her claim of status-based discrimination if he or she can prove that discrimination was a "motivating factor" in the adverse employment decision that harmed the plaintiff, even if other factors also played a part. (26) However, the Price Waterhouse plurality also described an affirmative defense for employers. Once a plaintiff met the "motivating factor" standard, the burden of persuasion would shift to the employer to show that it would have acted the same way, regardless of its improper motive. (27) Under the Price Waterhouse decision, if an employer could prove this "same decision" defense, it was wholly absolved of liability. (28) Neither plaintiffs nor defendants were entirely satisfied by the Price Waterhouse decision. Although the "motivating factor" standard was a positive result for plaintiffs, the "same decision" defense was helpful for employers.

      In response to Price Waterhouse, Congress enacted the Civil Rights Act of 1991 ("1991 Amendments"), which, in part, abrogated the portion of Price Waterhouse that allowed the employer an absolute...

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