Supreme Court Raises Bar for Proving Retaliation

In a decision favoring employers, the Supreme Court split 5-4 on the issue of which causation standard should apply to Title VII retaliation claims.  In University of Texas Southwestern Medical Center v. Nassar, Justice Kennedy wrote for the majority, which held that claimants in retaliation cases must satisfy a standard of “but-for causation.” That means the claimant “must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.”  In this case, the claimant’s lawyer had argued that his client need only show that retaliation was a “motivating factor,” the standard used in other Title VII claims for bias (i.e., discrimination claims).  The Supreme Court rejected that argument, finding that Congress did not intent the lessened “motivating factor” standard to apply to Title VII retaliation claims.  The Supreme Court’s decision resolves a split in the circuits on this issue, and will ultimately make it more challenging for employees to prove that their employer retaliated against them.