Victims of workplace retaliation will have a harder time proving their Title VII cases after a Supreme Court ruling yesterday. In a 5-4 decision, the Supreme Court held in University of Texas Southwestern Medical Center v. Nassar that individuals suing under Title VII’s anti-retaliation provision must satisfy a more difficult standard of proof than individuals suing under its anti-discrimination provision. The decision is sure to have a significant impact on many Title VII plaintiffs.
Title VII prohibits not only discrimination on the basis of race, color, sex, gender, religion, and national origin, but also retaliation against individuals who oppose such unlawful discrimination. In cases under Title VII’s discrimination provision, an employee can prevail if she proves the challenged action (for example, firing) was motivated by a protected characteristic (for example, religion), even if the employer had a legitimate motivation as well (for example, absenteeism). This is called the “mixed motive” standard, and Congress has specifically put it into Title VII. Until yesterday’s decision in Nassar, many believed the “mixed motive” standard of proof applied to retaliation claims as well.
In Nassar, the Supreme Court held that the “mixed motive” standard does not apply to Title VII retaliation claims. Instead, plaintiffs with retaliation claims must meet the higher “but for” standard of proof. That standard requires an employee to show that the employer would not have retaliated “but for” the employee’s protected activity. Unlike in “mixed motive” cases, the employee loses unless she shows there was no other motivation except an unlawful one. As employers will always claim some legitimate reason for their challenged conduct, the “but for” standard is harder for employees to meet than the “mixed motive” standard.
Nassar will mean the difference between winning and losing for some employees. Still, Title VII and its Ohio anti-discrimination counterpart do offer protection for employees who were victimized because they stood up against unlawful workplace discrimination. If you think you are one of those victims, you should move quickly and reach out to an employment lawyer about your rights. In the meantime, the best thing people can do to protect the rights of workplace retaliation victims is to call or write their members of Congress and demand that Congress amend Title VII to clarify that victims of workplace retaliation should not have a harder time vindicating their rights than victims of workplace discrimination.
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