Supreme Court to Decide Whether Mixed-Motive Analysis Applies to Retaliation Claims

Last week the U.S. Supreme Court granted a Petition for Writ of Certiorari filed by the University of Texas Southwestern Medical Center in the case captioned University of Texas Southwestern Center v. Naiel Nassar, M.D.  General information regarding the case is available at SCOTUSblog; the actual petition is accessible here.

The question presented is:

Whether Title VII’s retaliation provision [42 U.S.C. § 2000e-3(a)] and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).

The petition presents this issue as a conflict between two SCOTUS precedents:  Price Waterhouse v. Hopkins, 490 U.S. 228, 237 (1989) (which held that if a plaintiff in a Title VII discrimination case proves that discrimination “played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s [membership in a protected class] into account.”) and Gross v. FBL Financial Services, Inc., 557 U.S 168, 174 (2009) (establishing a standard for “but for” causation in cases arising under the Age Discrimination in Employment Act).

The Fifth Circuit, which issued the decision sought to be overturned, held (based on its own precedent, namely, Smith v. Xerox Corp., 602 F.3d 320, 330 (5th Cir. 2010)) that Price Waterhouse, and not Gross, was controlling and therefore “sanctioned mixed-motive Title VII retaliation claims.”

In light of Price Waterhouse, Congress amended Title VII by (according to the petition) “adopting a more nuanced scheme for Title VII discrimination claims.”  In particular, shortly after SCOTUS decided Price Waterhouse, Congress amended Title VII by passing the Civil Rights Act of 1991.  The new statute provided that a defendant is liable if:

the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

42 U.S.C. § 2000e-2(m).

The petitioner, the defendant below, claims that it was improper to allow the jury to consider a “mixed motive” theory for plaintiff’s retaliation claim under Title VII because “[w]hen Congress amended Title VII’s discrimination provision, it left Title VII’s retaliation provision unchanged” and the retaliation provision “does not set forth or cross-reference a mixed-motive standard.”

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