Details: University of Texas Southwestern Medical Center v. Nassar

This is a case about the standard for proving retaliation in violation of Title VII of the Civil Rights Act.  The statute’s focus is on prohibiting employment discrimination.  But to ensure the effective enforcement of the statute, it also prohibits an employer from retaliating against a worker for complaining about employment discrimination (for example, by filing a complaint with the Equal Employment Opportunity Commission (EEOC), the agency that enforces Title VII).

Title VII has been characterized by a back-and-forth between the Court and Congress, with Congress overruling a number of the Court’s restrictive interpretations of the statute in the past.  One such decision was an opinion from the Court that construed Title VII to require employees to prove that the discrimination was the so-called “but for” cause of the employee’s termination, failure to be hired, etc.  As a result, even if the employer admitted that race was one of the reasons for refusing to hire the worker, the worker could still lose if the jury believed that the employer would not have hired the worker anyway.  Congress reacted to this ruling in 1991 by amending the law to say that all the worker has to show is that discrimination was a “motivating factor” in the employment decision; if so, the worker wins the case, but the employer can avoid having to pay damages if it can show that it would have taken the same action anyway.

The question in Nassar was whether this provision also applies to claims of retaliation.  The Supreme Court held that it does not.  Writing for a five-Justice majority, Justice Kennedy explained that the “motivating factor” provision only applies to claims of “discrimination” — which, in this context, means only claims of discrimination based on (for example) race, sex, and religion, rather than retaliation.  The decision is based on a close parsing of the statutory text and structure.

Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, strongly dissented; in fact, Justice Ginsburg took the unusual step of reading a summary of her dissent from the bench.  She argued that the Court had previously considered retaliation as a form of “discrimination,” and that the majority was ignoring the reasonable interpretation of the EEOC and the underlying purposes of the “motivating factor” amendment.  As she did in Vance, Justice Ginsburg ended her dissent calling for Congress to overturn the decision.