Retaliation claims are a constant concern for employers (and management-side employment attorneys). Since 1997, retaliation claims filed with the EEOC have risen from 18,198 to 37,836 in 2012. The Supreme Court has attributed this rise, in part, to the fact that an employee potentially facing adverse employment action could attempt to delay/disrupt the adverse employment action (demotion, discharge, etc.) by simply asserting an allegation of discrimination. Thereafter, if the employer proceeded with the adverse employment action, the employee could claim it was retaliation.
Fear of a retaliation claim, accordingly, often “handcuffed” employers from taking justifiable adverse employment action. This summer, the U.S. Supreme Court provided employers some relief. In University of Texas Southwestern Medical Center v. Nassar, the U.S. Supreme Court clarified the legal standard for retaliation claims and adopted a strict causation standard that will make it more difficult for employees seeking to prove retaliation.
In retaliation cases, a plaintiff must prove three elements:
- Protected activity such as complaining of discrimination or participating in a discrimination investigation;
- Adverse employment action; and
The causation element is the crucial piece for employment litigation. Prior to the Supreme Court’s decision in Nassar, many courts applied a “mixed motive standard” to employment retaliation claims. This mixed motive standard only required employees to establish that his/her protected status was a reason for the adverse employment action–it did not need to be the only reason.
In Nassar, the Supreme Court rejected the mixed motive standard applied by the lower courts and held, for retaliation claims, an employee must establish that a retaliatory motive was the “but for” cause of the adverse employment action. The employee must prove that the adverse action would not have occurred in the absence of the discriminatory intent. With this “but for” standard, the burden of proof in discrimination litigation will not shift to the employer on the retaliation claim and, accordingly, employers should be able to obtain dismissal of retaliation claims more readily through summary judgment.
PRACTICAL COUNSEL: Although the Nassar decision provides some relief from the “handcuffs” of potential retaliation claims, employers must still be very careful when terminating any employee who has made allegations of discrimination. Where prior to the Nassar decision, an adverse employment decision might be put on indefinite hold by an employees unfounded allegations of discrimination, after Nassar employers can proceed with adverse employment actions – but only following careful review to ensure that the adverse employment action is objectively justified and supported by credible evidence.
If you have any questions about this article, need help with employment decisions, or any other legal matter, please contact Merritt Green, Managing Partner and Chair of General Counsel, P.C.’s Labor and Employment Practice Group at firstname.lastname@example.org