You have undoubtedly heard us harp on retaliation cases.  Employees and ex-employees seem to be bringing more and more of these cases, and the courts have been very open to them.  Here’s an example.  Your employee makes a complaint of gender discrimination.  She says that Joe got the promotion she should have received.  Well, let’s say, it turns out she was wrong.  Joe had a college degree in the applicable field and her college degree was in a different field.  Nevertheless, if she suffers retaliation as a result of raising that complaint, she can sue for retaliation under Title VII.  The law reads:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees… because he [or she] has opposed any practice made an unlawful employment practice… or because he [or she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].

The law is clear.  Even if the underlying complaint turns out to be incorrect as in the above example, a good faith complaint of unlawful discrimination is protected conduct.

For some time, retaliation claims were tied to adverse employment actions such as discharge or demotion.  Then, in 2006, the United States Supreme Court issued its opinion in Burlington Northern & Santa Fe Railway Co. v. White, which seemed to open the floodgates on what types of conduct could be actionable retaliation (e.g., reassignment of job duties with no change of pay).  Since 2006, employers have been continuously cautioned about retaliation claims.  They have been on the rise and ever more difficult to defeat prior to trial. 

On June 24, 2013, the United States Supreme Court gave employers a bit of good news.  The Court outlined that a person must prove that his protected conduct was the “but for” reason for the retaliatory action.  Read on.

The Court described Title VII as having two parts.  The first part prohibits status based discrimination – discrimination based upon race, color, religion, sex, and national origin.  The second part prohibits retaliation.

To prove an employer committed unlawful status based discrimination in violation of Title VII (race, color, religion, sex, national origin), the employee must prove that his/her status “was a motivating factor for any employment practice, even though other factors also motivated the practice.”  In other words, your employee need not prove that his national origin was the only factor in the adverse employment decision or even the motivating factor.  He only has to prove it was a motivating factor.

Prior to June 24, the lower courts used this same standard in assessing claims of retaliation under Title VII. 

The Court found that differences exist in Title VII’s retaliation language.  Based upon these differences, the Court decided that for an employee to prevail on a claim of retaliation under Title VII, he must prove it was the “but for” reason for the retaliation.  In other words, the employee must prove that “but for” his complaint of national origin discrimination he would not have been assigned the job duties he claims were retaliatory. 

The “but for” standard is a significantly more difficult standard for an employee to meet.

Interestingly, the Supreme Court discussed how important it was to properly interpret and implement Title VII’s language on retaliation claims.  The Court wrote:

This is of particular significance because claims of retaliation are being made with ever-increasing frequency. The number of these claims filed with the Equal Employment Opportunity Commission (EEOC) has nearly doubled in the past 15 years – from just over 16,000 in 1997 to over 31,000 in 2012.  (citation omitted)  Indeed, the number of retaliation claims filed with the EEOC has now outstripped those for every type of status-based discrimination except race.  (citation omitted).

University of Tex. Southwestern Medical Ctr. V. Nassar, 570 U.S. ___, ___ (2013).

What is the takeaway?  While the Supreme Court in 2006 broadened the types of actions which can be considered retaliatory (no longer just dismissals and demotions), it has now made it more difficult for any person to walk into the courthouse and claim that an action was in fact retaliation for protected activity.  No longer can a person allege that their job reassignment was motivated, in part, by their complaints of pay disparity.  Such a person would have to prove that the reassignment would not have occurred “but for” those complaints.

By Kristen L. Brightmire, kbrightmire@dsda.com