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Vedder Thinking | Articles Supreme Court to Hear a Case Affecting a Fundamental Element of Discrimination and Retaliation Actions


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The Supreme Court recently agreed to hear a case that should, at long last, determine whether the retaliation provision of Title VII requires an employee to prove but-for causation (that the employer would not have taken the challenged action but for an improper motive) or whether the employee should prevail if he or she is able to establish merely that an improper motive was one of several reasons for the challenged action. The latter method of proof, often referred to as the mixed-motive analysis, tends to pose a more difficult challenge to employers defending against such claims, particularly in front of a jury.

In Nassar v. University of Texas Southwestern Medical Center, the plaintiff alleged that he was constructively discharged—that is, the conditions at his place of employment were so distressing that he had no choice but to resign. He also claimed that his employer “retaliated against [him] by preventing him from obtaining a position” at another work site.

Nassar, a doctor of Middle Eastern descent who was working at the University of Texas Southwestern Medical Center (UTSW), complained that his immediate supervisor made several insensitive remarks about his ancestry and unfairly scrutinized his performance. His supervisor, he claimed, also attempted to block his efforts to secure a promotion. In the end, Nassar received the promotion, but he still sought employment elsewhere as a result of the harassment he claimed to be experiencing at UTSW. Nassar eventually expressed interest in working at a clinic affiliated with UTSW. UTSW initially approved his request to work at the clinic, but it later reversed course after Nassar explained that he was resigning because he felt he had been harassed.

The question before the Supreme Court is whether an employee, in this case Nassar, must show only that illegal bias was one of several reasons (mixed-motives) for the adverse employment action he experienced, or whether the illegal bias was the primary reason for the action. If the Court endorses the mixed-motive approach, employers defending Title VII claims will find it more difficult to defend against such claims, as it is easier for employees to establish that mixed motives led to an adverse employment action than it is to show that an illegal bias was the reason for an employment decision. Similarly, it is more difficult for employers to prove that a multifactor employment decision did not also include illegal discriminatory or retaliatory motives when it was made.

The Supreme Court is likely to hear the case in April, with a decision to follow in June. We are actively monitoring the case and will release an update when there is a decision. Stay tuned or contact your Vedder Price attorney, J. Kevin Hennessy at +1 (312) 609 7868, Amy L. Bess at +1 (202) 312 3361, or Neal I. Korval at +1 (212) 407 7780.

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Amy L. Bess