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“But-for” the Supreme Court, Retaliation claims would be motivational


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By Gina Helou

Title VII of the Civil Rights Act covers, among other things, discrimination and retaliation in the workplace.  What was once a lenient test for employees to show their employers retaliated against them for engaging in a protected activity (e.g. filing a charge of discrimination or retaliation with the EEOC), is now a stringent burden of proof.  Prior to the Supreme Court’s recent decision, an employee could succeed on a Title VII retaliation claim by showing his or her engagement in a protected activity was simply a motivating factor for the employer’s adverse employment action.  For instance, if an employee filed an EEOC charge against his employer and was soon later demoted for a myriad of reasons, he or she was only required to show the filing of an EEOC charge was one of the motivating factors in the employer’s demotion decision.  Now, however, the “motivating factor” test is not enough.  Instead, as of June 2013, an employee must meet a “but for” standard to be successful on a Title VII retaliation claim. In other words, the employee must show he or she would not have suffered an adverse job action if the EEOC charge had not been filed – a much more difficult standard to meet.

Facts of the case
A faculty member and staff physician at a university hospital, Islamic and of Middle Eastern descent, filed Title VII allegations against the university for discriminating against him based on “a religious, racial and cultural bias against Muslims and Arabs,” and for retaliating against him by withdrawing a job offer from an affiliated hospital after he sent a scathing letter to several faculty members about the discriminatory and harassing nature of some of his superiors. The physician further claimed he was constructively discharged, or forced to resign, from his faculty position because the harassment was so severe and no one would take action against his harasser to prevent any future harassment from taking place.  The Fifth Circuit Court of Appeals found in favor of the physician on his retaliation claim, but based its findings on the same “motivating factor” test used to determine status-based discrimination (which specifically includes discrimination based on “race, color, religion, sex, or national origin”).  The university appealed to the Supreme Court, who disagreed with the court’s application of the “motivating factor” test.

No support in the statute
The Supreme Court found the language of Title VII clearly and specifically used the words “motivating factor” to explain how an individual can establish an unlawful employment action took place for purposes of a discrimination claim.  However, the same phrase is not used in the retaliation portion of Title VII, which the Supreme Court concluded was intentional on the part of Congress.  Accordingly, the Supreme Court rejected the Fifth Circuit’s application of the “motivating factor” test to Title VII retaliation claims, establishing the “but for” test described above as the new standard of causation.

The take away
This decision marks a drastic change in how employment law cases have been decided in the past.  Retaliation claims were often boot-strapped to discrimination claims, and aside from claims under the Age Discrimination in Employment Act (ADEA), those claims were decided on similar standards.  Now employees will have to work a lot harder to prove their Title VII retaliation claims, which could lead to less claims being filed overall.  Over 31,000 Title VII retaliation claims were filed in 2012, and it will interesting to see if this new standard of proof will result in a lower number for 2013.


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