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    Edwards Wildman Client Advisory - U.S. Supreme Court to Address Breadth of “Mixed-Motive” Theory — Does It Apply to Retaliation Claims?

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    The U.S. Supreme Court will soon consider whether the “mixed-motive” theory of discrimination under Title VII, codified in the Civil Rights Act of 1991, applies to retaliation claims brought under Title VII, or only to discrimination claims. The issue before the Supreme Court is whether a plaintiff must demonstrate that a discriminatory motive is the “but-for” reason for the allegedly retaliatory employment action, or whether simply demonstrating that retaliation is one of several motives is sufficient. The Court’s answer to this question is important because if the Court reads the 1991 law broadly, plaintiffs will have a much easier time avoiding summary judgment rulings and would be far more likely to prevail on the merits.

    In a “mixed-motive” claim, a plaintiff typically asserts that an unlawful reason motivated an employer’s discriminatory action. The employer, on the other hand, claims that a neutral, nondiscriminatory reason was the motive, and both possible explanations are supported by some evidence. If the plaintiff can show that the unlawful motive played any part at all in the negative employment action, then a finding of discrimination may be made. The burden of proof then shifts to the employer to demonstrate that, even if the allegations of discrimination are credible, the employer would have taken the same action absent the alleged discrimination. If the employer can demonstrate by a preponderance of the evidence that it would have made the same decision without any discrimination, then the plaintiff is not entitled to damages. This theory clearly applies to discrimination claims; the question before the Court is whether plaintiffs claiming retaliation can also take advantage of this lower standard of proof.

    In 2009, the Supreme Court ruled in Gross v. FBL Financial Services, Inc. that plaintiffs bringing claims under the Age Discrimination in Employment Act (ADEA) may prevail only if they can demonstrate that age was the “but-for” reason for the challenged employment action. In other words, the Court eliminated the ability of plaintiffs to use a “mixed-motive” theory for claims brought under the ADEA.

    In the case now before the Supreme Court, Naiel Nassar was an assistant professor of internal medicine at the University of Texas Southwestern (UTSW) and Associate Medical Director of a clinic at Parkland Hospital, with which UTSW is affiliated. Nassar believed that a high level administrator, Dr. Beth Levine, was discriminating against and harassing him on the basis of his national origin and religion (Nassar is a Middle Eastern Muslim). In an effort to remove himself from Levine’s chain of command, Nassar applied for a clinical position at Parkland Hospital. He was offered a position as staff physician. Before beginning his new job, Nassar wrote a letter to Levine’s supervisor, Dr. Fitz, resigning his faculty position at UTSW and stating that the reason for the resignation was Dr. Levine’s harassment and discrimination. Dr. Fitz intervened in the Parkland Hospital hiring decision, and Parkland withdrew its offer of employment to Nassar. Although Nassar claimed that Dr. Fitz’s motivation for intervening in the hiring decision was an attempt to “publicly exonerate” Dr. Levine, UTSW claimed that Dr. Fitz’s intervention occurred before he received Nassar’s letter, and was motivated by his intent to enforce an affiliation agreement with Parkland, which required Parkland to hire only UTSW faculty for staff physician positions.

    The jury found that UTSW had constructively discharged Nassar and had persuaded Parkland to withdraw its offer of employment in retaliation for Nassar’s complaint about the alleged discrimination and harassment. UTSW appealed, and the appellate court reversed the constructive discharge verdict but upheld the retaliation claim. Since Nassar had resigned his faculty position shortly after he was offered the Parkland position, UTSW argued, Parkland was not permitted to hire him, and Dr. Fitz was merely enforcing the terms of the affiliation agreement -- a neutral, non-retaliatory reason. The appellate court noted that the jury, which had heard evidence of both possible reasons for rescinding the job offer, had found the retaliation explanation more credible and refused to disturb its finding. An appeal to the U. S. Supreme Court followed; oral arguments will be heard on April 24, 2013.

    Federal appellate courts are divided on the issue of whether a plaintiff claiming retaliation under Title VII can use the mixed-motive theory. UTSW argues that this theory applies only to discrimination claims brought under Title VII and not to retaliation claims, and would extend that reasoning to claims brought under other federal nondiscrimination laws as well. For that reason, this case bears watching. A broad ruling extending the mixed-motive theory to retaliation claims—whether under Title VII or other nondiscrimination laws—will make such claims more difficult to defend and far more difficult for employers to defeat.


    If you would like further information, please contact the Edwards Wildman lawyer responsible for your matters or any of the authors linked above.

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