New Standard for Employment Retaliation

Because of the harassment and discrimination, Dr. Nassar eventually sought employment allowing him to continue working at Parkland without being a UTSW faculty member subject to Dr. Levine’s supervision. Parkland offered Dr. Nassar a job as a staff physician, on the condition that he resign from UTSW. In his letter of resignation from UTSW to several UTSW faculty members, Dr. Nassar wrote that the primary reason for his resignation was the continuing harassment and discrimination against him by Dr. Levine, stemming from her “religious, racial and cultural bias against Arabs and Muslims that has resulted in a hostile work environment.” Soon after the letter was circulated, Dr. Gregory Fitz, Dr. Levine’s immediate supervisor, expressed consternation at the accusations. He opposed Parkland’s hiring of Dr. Nassar, and Parkland withdrew its offer of employment.

Dr. Nassar filed suit in the Northern District of Texas, claiming that UTSW had constructively discharged and retaliated against him in violation of Title VII. At trial, a jury found for Dr. Nassar on both counts and awarded him $436,167.66 in back pay and over three million dollars in compensatory damages. On appeal, the Fifth Circuit affirmed the district court’s judgment regarding liability for retaliation, but vacated the judgment regarding liability for constructive discharge. The Supreme Court granted certiorari to resolve the standard by which Title VII retaliation claims must be proved, and, because it found retaliation claims are subject to a but-for causation standard, vacated the Fifth Circuit’s judgment.

Title VII imposes a “motivating factor” causation standard on plaintiffs who are discriminated against on the basis of race, sex, or any other protected category; they need only show that the discrimination was one motivating factor, among other, lawful motives, in their employer’s decision to terminate, not hire, or demote them. The Supreme Court, in a 5-4 decision,held that a heightened “but-for” standard applies to Title VII claims of retaliation. Cincinnati and Ohio employment lawyers who represent plaintiffs discriminated against for opposing an unlawful employment practice must now show they would not have been fired, not hired, or demoted but for their employer’s retaliation for their opposition to discrimination.

The Supreme Court’s heightened standard for retaliation claims is a blow to Title VII plaintiffs and the Ohio employment lawyers who represent them. As Justice Ginsburg explained in her dissent, protection against retaliation is essential to protection against discrimination, and the two go hand in hand; fear of retaliation is why discrimination often goes unreported. Reducing the incentive to bring retaliation claims essentially reduces the likelihood of discrimination claims. Indeed, Title VII lawsuits often include claims for both retaliation and discrimination; to impose different causation standards on each is confusing and nonsensical.

In an unusual move, Justice Ginsburg read a summary of her dissent from the bench, imploring Congress to “correct the Court’s wayward interpretations of Title VII.” In the past, Congress has responded to Title VII Court decisions through statutory amendments – whether it does so here remains to be seen. In the meantime, employment lawyers in Cincinnati and Ohio will have to apply this new standard when evaluating retaliation claims.