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JOB CITES: High court’s decision will impact how lawyers defend employment claims

Suzanne Glisch is an employment associate in Gonzalez Saggio & Harlan LLP’s Milwaukee office. She can be reached at Suzanne_glisch@gshllp.com.

The U.S. Supreme Court is set to decide a case that may have a significant impact on how employers approach defending claims under multiple federal employment laws.

The issue is one that may appear technical but nonetheless is significant for employers: The proper application of a recent Supreme Court decision and what an employee-plaintiff must prove in order to prevail on a claim of retaliation under Title VII of the Civil Rights Act of 1964, and under similarly worded employment statutes.

Some circuits — like the Seventh — require a plaintiff to prove “but-for” causation. Others only require proof that the employer had a “mixed motive.” Fortunately, the issue may be settled this year when the U.S. high court decides University of Texas Southwestern Medical Center v. Nassar.

By way of background, Nassar comes to the Supreme Court from the United States Court of Appeals for the Fifth Circuit, where the appellate court upheld the district court’s finding that Naiel Nassar had been retaliated against. The district court’s conclusion came after it instructed the jury on a mixed-motive theory of causation rather than a but-for theory of causation.

A but-for theory requires that the plaintiff demonstrate that the employer would not have taken the adverse employment action but for an improper motive. By contrast, the less onerous mixed-motive theory requires only that the plaintiff establish that an improper motive was one of multiple reasons for the adverse employment action.

These two theories are at issue here mainly because of two Supreme Court decisions and one act of Congress. The mixed-motive causation standard comes from the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). However, following the Price Waterhouse decision, Congress passed the Civil Rights Act of 1991, which nuanced the theory of causation for Title VII discrimination cases. Notably, although the Civil Rights Act of 1991 changed parts of Title VII, it left untouched the language in Title VII’s retaliation provision.

Then, in 2009, the Supreme Court held in Gross v. FBL Financial Services, Inc., 557 U.S. 168 (2009), that because the language of the Age Discrimination in Employment Act prohibits discrimination “because of” an individual’s age — language that happens to mirror the Title VII retaliation provision — plaintiffs asserting ADEA claims must prove but-for causation. The Supreme Court based its decision in Gross in part on the fact that Congress changed parts of Title VII through the Civil Rights Act of 1991 but declined to make similar changes to the ADEA.

The result of all this has been a circuit split on the application of Gross and the proper standard of causation in cases under federal employment statutes. Specifically, here in the Seventh Circuit (along with the First and Sixth Circuits), courts follow the holding in Gross and believe the Court’s decision in that case to require that, unless a federal employment statute expressly requires otherwise, an employee-plaintiff must prove but-for causation. Because, like in the ADEA, the retaliation provision of Title VII does not include any express language permitting mixed-motive claims, as opposed to Title VII’s discrimination provision, which does reference a mixed-motive theory, but-for causation is the proper standard to use.

Further, courts in the Seventh Circuit have even applied this logic to other employment statutes that mirror the ADEA’s “because of” language, such as the Rehabilitation Act.

The Fifth and Eleventh circuits, on the contrary, have limited the Gross holding only to cases involving claims under the ADEA, requiring a plaintiff bringing suit under the other employment discrimination statutes to prove only that the improper motive was one of multiple reasons for the alleged discriminatory action — the mixed-motive theory.

The Supreme Court’s decision on this issue could, therefore, have a significant, practical impact on employers, employees, and employment litigation generally.

If the Supreme Court agrees with the University of Texas Southwestern Medical Center and expands its holding in Gross to apply to Title VII retaliation cases — and any other employment statute that uses language similar to the ADEA or Title VII’s retaliation provision — then employers in the Seventh Circuit will continue to be subject to the but-for standard currently utilized in retaliation claims.

If the Supreme Court agrees with Nassar, however, the landscape for employers in the Seventh Circuit will change, and they may face a more difficult time defending themselves against discrimination and retaliation claims pursuant to the less onerous mixed motive theory.

The case is scheduled for oral arguments on April 24.

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