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.
Michael K. Furey authored article, "Is It Worth the Risk to Represent a Client Who Has Fired a Previous Attorney?," for the New Jersey Law Journal.
On February 26, Heather Weine Brochin will be speaking at "Weathering NJ's New Employment and Contracting Laws," a seminar presented by the New Jersey Builders Association (NJBA) and held in Robbinsville, NJ.
On January 7, Francine Esposito presented a live webinar, "FMLA Leave Is Exhausted: How to Address Transfer and ADA Accommodation Requests, Fitness-for-Duty Exams, and More," sponsored by BLR.
Mark Romance authored an article, "Five Tips for Representing a Non-Party Served with a Document Subpoena: Welcome to the Party?," published by the American Bar Association Section of Litigation.
On October 24, Heather Weine Brochin and Mike Dell will present a webcast, titled "2019: A Year of Dramatic Changes for Mandatory Employment Arbitration?" in partnership with Celesq and West LegalEdcenter/Thomson Reuters.
Day Pitney Managing Partner Thomas Goldberg was quoted in Hartford Business Journal article, "Hartford law firms see spike in COVID-19-related business."
Daniel Schwartz was quoted in Hunt Scanlon Media article, "Defending Against the Cancel Culture from the Inside Out."
Day Pitney Press Release
Day Pitney Press Release
Day Pitney's Michael Napoleone has been appointed to the Palm Beach County League of Cities board of directors.