California Employees Can Avoid the Supreme Court’s New Heightened Burden in Retaliation Cases

Dr. Naiel Nassar was employed by the University of Texas Southwestern Medical Center as a faculty member and staff physician. Dr. Nassar, who is of Middle Eastern descent and practices Islam, claimed that one of his supervisors was biased against him on account of his ethnic heritage and religion. As a result, he resigned his faculty position, but continued working as a staff physician.

After resigning, he sent a letter complaining that the reason he resigned was due to his supervisor’s “religious, racial and cultural bias against Arabs and Muslims.” Based on this complaint, the Hospital withdrew his job offer. Dr. Nassar filed a Title VII lawsuit claiming, among other things, retaliation. The jury found for Dr. Nassar and the Court of Appeals for the Fifth Circuit affirmed the retaliation verdict. (The jury also found for Dr. Nassar on his discrimination/constructive termination claim. The Court of Appeals reversed on that issue. That claim was not before the Supreme Court). However, the University appealed to the Supreme Court to decide what type of causation a plaintiff must prove in a retaliation case.

In Title VII discrimination cases, a plaintiff only needs to show that his discrimination was a “motivating factor” in the decision to terminate him. The “motivating factor” standard acknowledges that even though there may be legitimate factors in deciding to take an adverse employment action against an employee, if the employee shows that discriminatory animus was one of the motivating factors, he has met his burden.

In its June 24, 2013 University of Texas Southwestern Medical Center v. Nassar decision, the Supreme Court held that in proving a retaliation claim under Title VII, a plaintiff must prove “but for” causation. “But for” causation requires the employee to show that retaliatory animus actually motivated the employer’s decision to take the adverse action against the employee rather than the lower burden of showing that retaliatory animus was a motivating factor in the decision.

The Court’s justification was politically motivated. After explaining that the number of retaliation claims has increased substantially, the Court simply decided to limit these claims by arbitrarily making them more difficult to prove.

It is not 100% clear what the standard is for a retaliation claim under state law (the Fair Employment and Housing Act), but whatever the standard is, it is a better standard than under federal law. For years, California employees only had to prove that discrimination was a motivating factor in the employment decision to prove discrimination under FEHA. Recently, the California Supreme Court issued Harris v. City of Santa Monica, 56 Cal.4th 203 (2013), setting a brand new standard of “substantial motivating factor” – a standard lesser than “but for” but greater than “a motivating factor.” Harris v. City of Santa Monica specifically dealt with a mixed motive case.

We believe that “motivating factor” is still the standard in retaliation cases because retaliation cases were not discussed in the Harris v. City of Santa Monica decision, but what the courts do remains to be seen. Regardless, the State causation standard is better than the federal standard in a retaliation case. This isn’t true for the causation standard in a discrimination case, where “a motivating factor” is written right into the statute. See 42 US 2000e-2(m). While the Nassar decision was a striking blow against employees who are victims of retaliation, fortunately, California employees can avoid the heightened “but for” cause standard by bringing their case under FEHA. Still, all these mixed up standards make employment cases a little more complicated that necessary.

July 26, 2013 Jody LeWitter

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