On June 24, the U.S. Supreme Court ruled that Title VII retaliation claims require employees to demonstrate an employer would not have taken an adverse employment action against them "but for" unlawful retaliation, rather than the lesser "mixed-motive" standard. In University of Texas Southwestern Medical Center v. Nassar, the employee, a medical doctor and faculty member at the university hospital, complained about alleged harassment based on his race and national origin. The employee later resigned from his dual position thinking he would be reinstated as a physician. When the university did not offer him reinstatement, the employee sued for unlawful retaliation under Title VII. The employee obtained a favorable jury verdict, which was affirmed by the U.S. Court of Appeals for the Fifth Circuit. The central question on review before the Supreme Court was whether the Fifth Circuit erred in applying a mixed-motive causation analysis to the Title VII retaliation claim. The mixed-motive analysis only requires proof that an employer had mixed motives for taking an employment action that included an unlawful motive, as opposed to the stricter but-for causation standard, which requires proof the alleged adverse employment action occurred because of an unlawful motive.
The Supreme Court rendered a five-justice majority decision that the stricter but-for causation standard should apply to Title VII retaliation claims. This requires proof the "unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer," Justice Kennedy wrote for the majority. The Court reasoned that when Congress made numerous amendments to Title VII in 1991, it did not specifically include reference to the mixed-motive standard of proof for retaliation claims. The Court also noted the significant rise in retaliation claims, which nearly doubled at the EEOC over the past 15 years. The Court expressed concern that lowering the causation standard could increase the filing of frivolous retaliation claims.
The dissenting justices disagreed, and Justice Ginsburg commented, "[T]he Court appears driven by a zeal to reduce the number of retaliation claims filed against employers." The dissent also indicated that this decision, along with the recent decision of Vance v. Ball State, which limited the definition of "supervisor" in Title VII cases, should cause Congress to act with new legislation.
Although the Nassar decision establishes a more favorable legal standard for employers in defending retaliation claims, employers still must proceed cautiously before taking any adverse action against an employee who has engaged in protected activity. Retaliation claims arising from such circumstances continue to proliferate and can be time-consuming, expensive and challenging to defend.
Day Pitney Alert
Day Pitney Alert
Day Pitney Alert
Heather Weine Brochin and Gregory Tabakman authored an article entitled "Third Circuit Advises that Employer Must Pay Employees for Short Rest Breaks," which was published by the New Jersey Law Journal.
Day Pitney partner Francine Esposito will speak at the upcoming webinar "Workplace Leave Laws: Strategies to Navigate the Changing Landscape in the U.S." Taking place on Sept. 14 at 2 p.m., the webinar is the first in a series of webinars hosted by the Employment Law Alliance (ELA) on workplace leave laws around the globe.
John McLafferty was quoted in an article, "Employment Lawyers Leery of Bill Banning NDAs, Arbitration," published by Massachusetts Lawyers Weekly.
Heather Weine Brochin was quoted in an article, "Confidentiality Disqualifies Harassment Settlement Tax Deductions," published on the Society for Human Resource Management (SHRM) website.
John McLafferty was quoted in an article, "How Employers' Haunted House and Fright Night Went Way Wrong," published on the Society for Human Resource Management (SHRM) website.
Michael Furey was quoted in an article, "The Biggest New Jersey Cases of 2016," which was published in Law360.
Michael Furey was quoted in an article, "NJ Panel Grills Hospitals Over Discovery In Horizon Row," in Law360. Day Pitney is representing five New Jersey hospitals in a lawsuit against Horizon Healthcare, relating to its new, multi-tiered health plan called OMNIA. Furey advocated on behalf of the five hospitals on Wednesday before a New Jersey appeals court that Horizon should turn over a consultant's report and certain agreements relating to how Horizon categorized hospitals under its controversial OMNIA Alliance program and the impact of OMNIA on the hospitals. These Tier 2 hospitals are alleging various claims, including breach of contract and citing concerns that being ranked in the lower tier of the program will cost them business. Horizon contends the sought-after materials, including a financial analysis, strategic alliance agreements and rate agreements between the insurer and OMNIA network hospitals, contain trade secret and confidential information. "If we're going to prove our hospitals should be Tier 1 alliance members, we need the documents and the information," Furey said.