U.S. Supreme Court Makes Retaliation Cases Harder to Prove

Yesterday, the U.S. Supreme Court issued its long-awaited ruling in University of Texas Southwestern Medical Center v. Nassar.  The issue in that case was whether a plaintiff alleging illegal retaliation under Title VII against her employer had to show but-for causation (i.e., that the employer would not have taken the adverse employment action but for its improper motive) or whether the plaintiff could prevail simply by showing the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).  The Fifth Circuit Court of Appeals had previously ruled that the more lenient mixed motive standard was the proper standard.  But a sharply divided U.S. Supreme Court reversed the Fifth Circuit and held that a plaintiff must prove but-for causation in order to prevail on a Title VII retaliation claim.

This 5-4 decision effectively makes it harder for plaintiffs to bring and win Title VII retaliation cases.  You can read the Court’s opinion here.

California employers probably recognize that the California Supreme Court recently addressed a similar issue under California law.  That case was Harris v. City of Santa Monica.  In Harris, the California Supreme Court ruled that, under California’s Fair Employment and Housing Act (the state law equivalent to Title VII), a plaintiff had to prove that unlawful discrimination was a “substantial factor” that motivated the employer’s actions.  Even if the plaintiff made that showing, however, an employer could escape liability if it could show that legitimate, non-discriminatory reasons would have led it to take the same action against the employee.  You can read my February 25, 2013 blog post about the Harris decision here.

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