A HEAVIER BURDEN FOR TITLE VII RETALIATION CLAIMS

Many times a school district faced with a Title VII discrimination claim has a legitimate and compelling basis for dismissal of the claim.  However, when the claimant continues to be employed by the school district, a retaliation claim against the school district may also be asserted on the grounds that disciplinary or other adverse employment related action was taken against the employee because the employee filed the discrimination claim.  Even if the school district is successful in having the underlying discrimination claim dismissed, it must still defend against the retaliation claim.  The United States Supreme Court’s 2013 decision in Texas Southwestern Medical Center v. Nassar has now made it easier for school districts to also dismiss the retaliation claim.

Prior to Nassar, an employee only had to establish that engaging in a protected activity was a “motivating factor” in the adverse action taken by the employer.  In other words, if the employee’s prior discrimination claim was considered by the employer, even if there were other business reasons for taking the adverse employment action, then it could be viewed as a “motivating factor” in taking the adverse action.  This is a less burdensome standard that many times will result in the survival of the retaliation claim.  In Nassar, the Supreme Court held that a Title VII retaliation claim requires proof that the protected activity, such as the filing of the underlying discrimination claim, was the “but for” cause of the employer’s adverse action.  In other words, “but for” the prior discrimination claim, no adverse action would be taken.  If the employer could establish other reasons for the adverse action, then the discrimination claim was not the “but for” cause of the adverse action.  This marks a significant change in the ability of school districts to successfully challenge and dismiss retaliation claims.  With the Nassar decision, the Supreme Court established that different standards applied for proving discrimination and retaliation under Title VII.  While retaliation claims will now require proof of “but for” causation, the underlying discrimination claim will continue to be governed by the “motivating factor” standard.  The analysis applied by the Supreme Court was similar to its 2009 decision in Gross v. FBL Financial Services Inc. in which it interpreted the standard for claims under the Age Discrimination in Employment Act (ADEA).  In Gross, the Supreme Court reasoned that the ADEA made it unlawful for an employer to discriminate against an employee “because of” age.  For Title VII retaliation claims, the statute uses the same language, prohibiting adverse action against an employee “because” he or she complains of discrimination.  In Gross, the Supreme Court held that “because” established “but for” causation, and therefore, applied that same rationale in Nassar to Title VII retaliation claims.

Encouraging to school districts and all employers were the comments by Justice Kennedy in his majority opinion in which he recognized that the Supreme Court’s decision would facilitate the resolution of “dubious” retaliation claims on summary judgment.  Justice Kennedy noted that “the proper interpretation and implementation of the … causation standard have central importance to the fair and responsible allocation of resources in the judicial and litigation systems.  This is of particular significance because claims of retaliation are being made with ever increasing frequency.”  With the Supreme Court’s decision in Nassar, retaliation claims will now hopefully be dismissed on summary judgment with similar increasing frequency.