Employees are filing unlawful retaliation claims with increasing frequency. The number of retaliation claims filed with the EEOC doubled from 1997 to 2012. In fact, in 2012, 38% of all EEOC claims filed alleged retaliation. Retaliation now ranks as the second most common type of discrimination claim filed with the EEOC, behind only race.
Retaliation claims are increasingly popular for two primary reasons. First, an employee can prove a retaliation claim without having to prove any underlying discrimination. If, for example, an employer fires an employee because the employee accuses it of racial discrimination, the employee can prevail on the retaliation claim even if the employer shows that it did not discriminate against the employee. The relative ease of proving retaliation (as opposed to discrimination) has resulted in a much higher success rate for retaliation claims, which naturally has led to more retaliation claims being filed. Second, punitive damages are available in retaliation cases, making such cases potentially more lucrative and therefore more attractive to plaintiff’s lawyers.
The United States Supreme Court evidently had this uptick in retaliation claims in mind when, on June 24, 2013, it decided University of Texas Southwestern Medical Center v. Nassar. That case involved a physician who accused his former employer of discrimination (on the basis national origin and religion) and retaliation. A jury found for the physician on both claims and awarded him $400,000.00 in backpay and $3 million in punitive damages (which the trial court later reduced). On appeal, the Fifth Circuit reversed the judgment for the physician on his national origin and religious discrimination claims, but affirmed the judgment as to the retaliation claim—finding that retaliation was a “motivating factor” in the employer’s decision to terminate the physician.
In a 5-to-4 decision, with Justice Kennedy writing for the majority, the Supreme Court overruled the Fifth Circuit, holding that the circuit court applied the wrong legal standard to the retaliation claim. “Title VII retaliation claims,” it held, “require proof that the desire to retaliate was the but-for cause of the challenged employment action,” not just a motivating factor. “But-for” causation requires proof “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Consequently, an employer accused of retaliation may rebut the claim by showing that it had have taken the same employment action against the employee, even absent the retaliatory motive.
In reaching it conclusion, the Supreme Court rejected the EEOC’s interpretation of Title VII’s ante-retaliation provision. The EEOC’s guidance manual stated that a claimant proves a retaliation claim if “there is credible direct evidence that retaliation was a motive for the challenged action,” regardless of whether there is also “evidence as to legitimate motive.” The Supreme Court gave the EEOC’s interpretation no deference, concluding that it was inconsistent with the text and structure of Title VII.
The majority opinion explicitly discussed the statistical uptick in retaliation claims. Clearly, the majority meant to stem the tide of retaliation claims by imposing a higher of proof on retaliation claimants. Whether Nassar will have that effect remains to be seen. But in the meantime, life just got more difficult for employees seeking to prove retaliation claims. Instead of having to prove that retaliation was a “motivating factor” for an adverse employment decision, employees now must prove that retaliation was the decisive—or “but-for”—cause of the adverse employment decision.