US Supreme Court justices have mixed feelings in mixed-motive Title VII case

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By Kimberly Atkins
Dolan Media Newswires

The justices of the U.S. Supreme Court seemed to have mixed feelings about allowing an employee asserting a Title VII-based retaliation claim to prove that his complaint of discrimination was one motivating factor for the employer’s adverse action rather than the but-for cause.

The court has already allowed so-called “mixed-motive” causation in Title VII discrimination claims, but the circuits are split on whether the analysis applies in retaliation claims. During oral arguments Wednesday in University of Texas Southwestern Medical Center v. Nassar — “our last case of the year,” Chief Justice John G. Roberts Jr. announced — the justices didn’t seem to have a clear answer.

The case was brought by Dr. Naiel Nassar, a Muslim doctor of Middle Eastern descent who resigned from his position as a faculty member at a University of Texas hospital, and then sued the hospital for constructive discharge and retaliation under Title VII. He claimed that he was denied a position in the hospital’s clinic because he complained of harassment by a supervisor.

A jury found for the plaintiff on his job discrimination claims as well as his mixed-motive retaliation claim, finding that retaliation was a motivating factor despite the hospital’s claim that he was not qualified for the clinic job. The 5th U.S. Circuit Court of Appeals affirmed, and the Supreme Court granted certiorari.

Daryl L. Joseffer, a partner in the Washington office of King & Spaulding LLP representing the employer, urged the court to adopt the same approach as it did in Gross v. FBL Financial Services, which prohibited mixed-motive disparate-treatment claims under the Age Discrimination in Employment Act.

“This court’s decision in Gross does most of the work in this case and the plain language of the 1991 amendments to Title VII [does] the rest,” Joseffer said.

But Justice Ruth Bader Ginsburg noted that for other statutes, such as the ADEA, the causation standard for the underlying claim is the same as for retaliation claims.

“Your argument is that in Title VII, where it’s very clear what the standard Congress wants to have for the discrimination claim, you’re going to have a different standard for retaliation,” Ginsburg said.

Joseffer said that retaliation claims are “a different subset of discrimination that’s not been subsumed within discrimination based on class.”

Justice Elena Kagan doubted that Congress would allow Title VII mixed-motive cases while barring the same standard for retaliation claims.

“Talk about elephants in mouse holes or — we can take up all our cliches — the dog that didn’t bark,” Kagan said. “Congress doesn’t do things like this without saying something.”

Brian P. Lauten, a partner in the Dallas office of Sawicki & Lauten LLP, arguing on Nassar’s behalf, said that it “does not make any sense at all for Congress to have created two causation standards under the same statute in 1991 without saying anything about it at all.”

Justice Antonin G. Scalia asked if that made sense for cases of “justifiable retaliation.”

“I mean, if the employee files a frivolous claim to embarrass the employer, he can’t erase that from his mind,” Scalia said. “And you say: ‘Oh, if that’s one of the reasons, no matter how frivolous the claim, he’s liable under the law.’”

“Substantive discrimination, the teeth of the Act, relies on employees being able to cooperate and be witnesses, that they have the guts to come forward” without fear of retaliation, Laiten said. “If you take that protection away, you are taking the teeth out of Title VII.”

A decision is expected before the term wraps up in June.