In University of Texas Southwestern Medical Center v. Nassar, the Court ruled that the ?but for? standard of causation applied for claims alleging retaliation under Title VII of the Civil Rights Act of 1964; 42 U.S.C. ?2000e-3(a). ?The Court rejected the ?motivating factor? standard which applies to ?status based discrimination? pursuant to 42 U.S.C. ?2000e-2(a).

In Nassar, the Plaintiff was a medical doctor of Middle?? Eastern? ?descent? ?who? ?specializes? ?in internal ?medicine ?and? infectious ?diseases.?? ?He was employed by the University of Texas Southwestern Medical Center as a member of the University?s faculty and a staff physician.?? He alleged ?that ?his ?new ?supervisor? was ?biased against him on account of his religion and ethnic heritage;? ?a? ?bias? ?manifested? ?by?? undeserved scrutiny of his billing practices and productivity, as well as comments that ?Middle Easterners are lazy.????? In an effort to avoid his perception of ongoing discrimination, he resigned his teaching post, and sent a letter of explanation in which he asserted that the reason for his resignation was harassment? which? ?stems? from? .? .? .? religious, racial and cultural bias against Arabs and Muslims.? ?The administrator to whom the letter was?? ?sent?? ?expressed?? ?grave?? ?concern?? ?about

Plaintiff?s letter, and insisted that the allegedly biased supervisor had been publically humiliated and needed to be exonerated.?? After the hospital originally granted Plaintiff staff physician privileges, the University then revoked the offer based upon an objection by the administrator who had received Plaintiff?s letter alleging discrimination.

Plaintiff filed suit alleging a status based discrimination ?claim ?(constructive? discharge) under ?2000e-2(a) ?and ?a retaliation? claim? under

  • 2000e-3(a). The jury awarded Plaintiff $400,000 in backpay and more than $3 million in compensatory damages, later reduced to $300,000. The University appealed. ?The Fifth Circuit reversed ?the? status ?based ?discrimination ?based upon insufficient evidence.?? ?It affirmed the retaliation claim relying upon the ?motivating factor? standard of causation. ?The Supreme Court granted certiorari on the issue of causation.

The Supreme Court first discussed the history of Title VII, including Price Waterhouse, the Civil Rights Act of 1991, and Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009)(holding that the ?but for? standard of causation applied under the ADEA). ?In Gross, the Court observed that the ADEA was not amended by the Civil Rights Act of 1991, and if Congress had intended for the ?motivating ?factor? ?standard ?to ?apply? it ?would have done so.?? The Court in Gross rejected the plurality opinion in Price Waterhouse that the language ?because of? required a ?motivating factor? standard of causation.

The Court in Nassar relied upon Gross, the textual difference between the different sections of Title VII, and Congress? failure to incorporate the ?motivating factor? standard into the retaliation section of Title VII.? ??Given the lack of any meaningful textual difference between the text in this statute and the one in Gross, the proper conclusion here, as in Gross, is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.? ?When Congress wrote the motivating-factor provision in 1991, it chose to insert it as a subsection within ?2000e-2, which contains Title VII’s ban on status-based discrimination . . . .? The Court concluded that if Congress intended to include the ?motivating factor? standard for all Title VII claims, it would have done so. ?This is the same reasoning relied upon in Gross.

The Court found the language and structure of Title VII so conclusive that it declined to adopt the traditional deference paid to the EEOC as the administrative agency charged with the statute?s implementation.?? ?The? Court ?explicitly rejected Plaintiff?s argument that Price Waterhouse controlled:? ??Given? ?the?? careful? ?balance? ?of lessened ?causation ?and? reduced? remedies Congress struck in the 1991 Act, there is no reason to think that the different balance articulated by Price Waterhouse somehow survived that legislation’s passage.?

The Court concluded: ?The text, structure, and history of Title VII demonstrate that a plaintiff making? a ?retaliation ?claim ?under ??2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.??? The Court remanded to the Fifth Circuit for a determination about whether the heightened ?but for? standard was satisfied.

Justice Ginsburg dissented.?? She reasoned that ?[r]etaliation ?for ?complaining? about discrimination is tightly bonded to the core prohibition and cannot be disassociated from it.? She ?also ?lamented ?the ?difficulty? of ?charging jurors with different standards of causation in the same case where both status based discrimination and ?retaliation ?are? claimed.?? ?After? dissenting from the Court?s statutory interpretation, reliance upon Gross, and the failure to rely upon Price Waterhouse and the EEOC Guidance Manual, Justice Ginsburg encouraged Congress to pass remedial legislation: ?Today’s misguided judgment, along with the judgment in Vance v. Ball State Univ., should prompt yet another Civil Rights Restoration Act.?

University of Texas Southwestern Medical Center, v. Nassar, ???????S. Ct. ???????(6/24/2013).