In a case appealed from the Fifth Circuit Court of Appeals, the U.S. Supreme Court held that a plaintiff in a Title VII retaliation case may prevail only when he shows that he would not have suffered an adverse employment action “but for” his engaging in protected activity.
In the first retaliation case in several years to side with the employer’s position, the Court held that Title VII retaliation plaintiff’s “claims must be proved by traditional principles of but-for causation.” Stated another way, the plaintiff must prove that the “unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”
In reaching its conclusion, the majority noted the increase in retaliation filings and the importance of having a fair and responsible allocation of resources in the judicial and litigation systems. The Court also observed that setting a lower standard of causation could contribute to the increase in the filings of frivolous claims. Justice Kennedy described a hypothetical that one can image occurs all too frequently in reality.
Consider . . . the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation.
It is unlikely, however, that the more direct “but-for” standard of causation will stem the rising tide of retaliation charges.
You can read a full copy of the UTSW v. Nassar here [pdf].
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