U.S. Supreme Court Raises Causation Standard For Title VII Retaliation Claims

Today the U.S. Supreme Court held, in Univ. of Tex. Sw. Med. Ctr. v. Nassar, that retaliation claims under Title VII of the Civil Rights Act of 1964 must meet the more rigorous “but for” standard of causation applied under the Age Discrimination in Employment Act.  

The Court, focusing on the text, history, and structure of Title VII, held that the “motivating factor” standard – codified in 42 U.S.C. § 2000e–2(m) – was applicable only to what it deemed “status-based discrimination”, and not to retaliation, claims:

Title VII defines the term “unlawful employment practice” as discrimination on the basis of any of seven prohibited criteria: race, color, religion, sex, national origin, opposition to employment discrimination, and submitting or supporting a complaint about employment discrimination. The text of § 2000e–2(m) mentions just the first five of these factors, the status-based ones; and it omits the final two, which deal with retaliation. When it added § 2000e–2(m) to Title VII in 1991, Congress inserted it within the section of the statute that deals only with those same five criteria, not the section that deals with retaliation claims or one of the sections that apply to all claims of unlawful employment practices. And while the Court has inferred a congressional intent to prohibit retaliation when confronted with broadly worded antidiscrimination statutes, Title VII’s detailed structure makes that inference inappropriate here. Based on these textual and structural indications, the Court now concludes as follows: Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.

Therefore, “a plaintiff making a retaliation claim under §2000e–3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.”

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