As I mentioned in yesterday’s post, the Supreme Court of the United States (SCOTUS) published a number of decisions in the last week of June. Yesterday dealt with the definition of a supervisor, today I deal with the decision that made it easier for employer to defend themselves from a claim of retaliation.
Retaliation is written into many laws
Retaliation as an EEOC claim, or a DOL claim, or an OSHA claim are all fast growing areas. Surprisingly many retaliation claims under laws such as Sarbanes-Oxley are investigated by the folks from OSHA. But the case that was decided by SCOTUS dealt with an EEO claim. According to Luis Santos of FordHarrision “Title VII also includes an anti-retaliation provision, which makes it unlawful for employers to take an adverse employment action against an employee for having opposed, complained of, or sought remedies for unlawful workplace discrimination. “
In the case of University of Texas Southwestern Medical Center v. Nassar Dr Nassar, who is of Middle Eastern descent, was a faculty member at the University of Texas Southwestern Medical Center (UTSW) and a clinician at UTSW-affiliated Parkland Hospital. Nassar claimed that he had been constructively discharged by the medical center and retaliated against as well when, upon getting a job offer from an affiliated hospital, the offer was withdrawn when the UTSW Medical Center wrote a letter and complained. The original court sided with Nassar on both counts and awarded him $3 million. According to the attorneys at Ogletree Deakins “The Fifth Circuit Court of Appeals affirmed, finding that retaliation claims only require a showing that retaliation was a motivating factor for an adverse employment action. The Supreme Court of the United States disagreed.”
The Supreme Court reviewed two causation standards in this case. The first was the mixed-motive standard that says that an employee only has to show that retaliation was one of the employer’s motives, even if the employer had other, lawful motives that contributed to the employer’s decision. The Supreme Court said this causation motive was not sufficient.
They held that an employee must show “but –for” causation. According to a legal dictionary “but-for” cause means “An act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred.” Or put another way, according to The HR Weekly “Must an employee prove his protected status or activity was the only reason he suffered retaliation? That’s the “but-for” standard, as in “But for the protected status or activity, would the employer have retaliated?” The Supreme Court said “yes”. As reported by The HR Weekly Justice Anthony Kennedy’s majority opinion stated that an employee “must establish that his or her protected activity was a but-for cause of the alleged adverse action.” The Justices sent the case down to a lower court for resolution. Ogletree Deakins’ interpretation reads “According to the Court, an employee who alleges retaliation under Title VII must satisfy the but-for causation test, that is, he or she must show that the causal link between the injury and the wrong is so close that the injury would not have occurred but for the act.”
The SCOTUS did not resolve the case, but sent their opinion and the case back to the lower court to a reconsideration of the case in light of the “but-for” causation.
Attorneys who defend companies have been happy with this decision. Many of them felt that retaliation claims were starting to go wild and were hard to defend because often documentation of continued activity was often missing. The Ogletree Deakins group think this ruling could possibly extend to other retaliation cases involving Wage and Hour and OSHA cases. That remains to be seen.
Regardless, HR and management should always be on the lookout for retaliation following complaints filed with the government. Retaliation is illegal and even though the standard to prove retaliation is greater do you really want to go through having to defend yourself?