People often say it’s not the crime that will do you in, it’s the cover-up. In some ways, that sentiment has been applicable to retaliation claims for alleged discrimination in the workplace. At least until this past Monday, when the U.S. Supreme Court handed down its decision in University of Texas Southwestern Medical Center v. Nassar, Slip Op., No. 12-484 (U.S. Sup. Ct., June 24, 2013). In fact, the governing rule of thumb was that while you might be able to provide compelling evidence of a trove of legitimate, non-discriminatory reasons for an employee’s termination, demotion, or other adverse employment action, if, following the employee’s complaint about the alleged discrimination or harassment, you went ahead and terminated, demoted, or took some other adverse employment action against the employee, you were liable to be saddled with having to deal with a potentially far more difficult to defend retaliation claim. The general rule was, even if performance issues were really the primary motivation behind the adverse employment action, and the plaintiff couldn’t prove that the legitimate, non-discriminatory reasons offered for the adverse employment action were mere pretext for an underlying discriminatory motive, if the desire to retaliate against the employee for pursuing a charge of discrimination or harassment was at least a “motivating factor” behind the adverse employment action, the employer would be liable.
Recognizing how potent a weapon this was, the plaintiff’s bar has increasingly pursued retaliation claims at every available opportunity. In fact, according to statistics kept by the Equal Employment Opportunity Commission (EEOC) and quoted by the Supreme Court in Nassar, the number of retaliation claims has nearly doubled in the past 15 years, going from just over 16,000 in 1997 to over 31,000 in 2012. And the problem was that, even if you could prove that there was no merit to the underlying discrimination claim, you were at risk of being subject to a judgment for retaliation, simply because of the temporal proximity of the charge of discrimination, and the subsequent firing or other discipline. In other words, even if you could prove the employee performed poorly before he/she was criticized, performed poorly after he/she was criticized, continued to perform poorly after he/she alleged discrimination, and was fired, primarily, for the fact that he/she performed poorly, you could be liable for retaliation in any event if it could be shown that the firing was motivated, at least in part, by a desire to retaliate against the employee for bringing the baseless charge of discrimination.
In Nassar, the Supreme Court has dramatically altered the playing field. Disagreeing with the prevailing conclusion in the federal courts that all that was necessary to prove retaliation in violation of 42 U.S.C. Section 2000e-3(a) was that retaliation was a “motivating factor” in the decision to engage in the adverse employment action at issue, the Court held that the appropriate causation standard was “but for” causation. In other words, it is no longer sufficient to prove that the adverse employment action may have been motivated in some part by a desire to get back at the no-good employee who had the bad manners to not only perform poorly at his/her job, but to then complain that the legitimate criticisms of his/her performance was really based in unlawful bias or discrimination. To prove a retaliation claim, it is now necessary to establish by a preponderance of the evidence that the adverse employment action would not have been taken “but for” the alleged motive to retaliate against the employee. This is a huge development, and a sea change in how the burden of proof was previously applied.
This said, what tangible impact will this have going forward? Unfortunately, it is unlikely we will see a huge drop-off in the number of retaliation claims being asseerted. It remains a weapon in the plaintiff lawyer’s arsenal, and lawyers like to make use of all of their weapons. But it will definitely have an impact on the likely success of such claims, and the value of these claims for settlement negotiation purposes. The fact is they have now become much harder to prove. And whether you agree or disagree with the Court’s determination in this regard, there is no denying it will be a big deal going forward.
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