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Argument preview: Proving retaliation under Title VII

On Wednesday, the Court will hear oral argument in University of Texas Southwestern Medical Center v. Nassar, No. 12-484.  The case asks the Court to decide which of three standards of proof apply to retaliation claims under Title VII.  Specifically, the Court will decide whether a plaintiff must prove that retaliation was: (1) the “but for” cause of his termination (or other adverse employment action), the standard the Court adopted for discrimination claims under the Age Discrimination in Employment Act in Gross v. FBL Financial Services, Inc.; (2) simply a “motivating factor” in the employment decision, a lesser standard of proof Congress adopted for race and sex discrimination claims under a 1991 amendment specific to Title VII; or (3) a “motivating factor” under a similar test the Supreme Court had applied to race and sex discrimination claims, prior to the enactment of the 1991 amendment, in its fractured decision in Price Waterhouse v. Hopkins.


The respondent in this case, Nassar, is a physician who was employed by the University at a medical center that provides AIDS treatment.  For reasons the parties dispute, he did not get along with his University-affiliated supervisor, whom he accused of racial and religious bias.  To resolve the situation, he claims, he arranged to resign his position at the University and become employed directly by the medical center (which would result in a change of supervisors).  But he alleges that after he complained about the discrimination, officials prevented him from being hired by the center, in retaliation for his allegations.

The University argued in the lower courts that, even without the alleged retaliation, Nassar would not have been hired by the center because its agreement with the center required that all physicians be members of the University faculty.  As a result, the retaliation could not be the so-called “but for” cause of his loss of the position – that is, Nassar could not show that but for the retaliation, he would have gotten the job.

Nassar argued that “but for” causation need not be proven in a Title VII retaliation case.  It is enough, he said, that the retaliation have been a “motivating factor” in the decision.

Although “but for” causation is ordinarily required for most legal claims, in Price Waterhouse v. Hopkins, a plurality of the Supreme Court adopted a “motivating factor” test for sex discrimination claims under Title VII.  Under that test, if a plaintiff shows that discrimination is a “motivating factor” in an employment decision, the defendant is liable unless it can prove that it would have taken the same action anyway. 

Congress subsequently codified a modified version of the rule in 1991.  The relevant amendment provided that Title VII is violated “when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”  Under the 1991 amendment, even if the employer can prove it would have taken the same action anyway, it is still liable, but it is not required to pay damages (although it is still subject to declaratory and injunctive relief, and attorney’s fees).

Prior to the 1991 amendment, courts generally applied the Price Waterhouse standard to all claims under Title VII and similar civil rights statutes, including retaliation claims.  But in 2009, the Supreme Court held that ordinary “but for” causation applied to retaliation claims under the Age Discrimination in Employment Act (ADEA).  That led to the question whether Title VII’s retaliation provision should be treated differently, either because there was something special about the ADEA that should prevent the ruling in Gross from being extended to Title VII, or because the “motivating factor” provision enacted in 1991 applied to retaliation claims under Title VII (the 1991 amendments did not apply to the ADEA).

The lower courts divided on the question, leading to the grant of certiorari in this case to resolve the conflict.

The arguments

The University has argued that the logic of Gross applies equally to Title VII retaliation claims – when a statute provides a remedy for injuries caused by “reason” of unlawful conduct (as Title VII and the ADEA do), courts should assume that Congress intended to invoke the long tradition of requiring plaintiffs to prove that the defendant’s illegal acts were the “but for” cause of the plaintiff’s injuries.

The Court’s adoption of a mixed-motive standard for sex discrimination claims in Price Waterhouse is no reason to avoid applying the usual “but for” test in retaliation cases, the University argues.  The 1991 amendment adopted the essence of the Price Waterhouse test but specifically limited it to claims of “race, color, religion, sex, or national origin” discrimination – the statute expressly left out any reference to retaliation claims.  Two consequences flow from this.  First, the 1991 amendment’s “mixed motive” provision does not apply to retaliation claims.  Second, by selectively incorporating Price Waterhouse only for substantive discrimination claims, Congress necessarily eliminated the decision’s application to any other kind of claim not expressly addressed by the 1991 provision – meaning that retaliation claims are governed by the general background “but for” rule rather than the 1991 amendment or Price Waterhouse.

Nassar has made two arguments in the alternative.  First, he argues that retaliation claims are covered by the 1991 “mixed motive” provision.  He acknowledges that the provision applies only to claims of “of “race, color, religion, sex, or national origin” discrimination.  But in interpreting antidiscrimination statutes – such as Title IX (which prohibits sex discrimination in federally funded education programs) or the federal-sector provisions of the ADEA (which prohibits age discrimination in federal employment) – the Court has repeatedly concluded that a general prohibition against sex or age discrimination implicitly prohibits retaliation, on the theory that retaliation is itself a form of sex or age discrimination.  If that is so, Nassar argues, retaliation claims fall comfortably within the text of the 1991 mixed-motive amendment even though it does not expressly mention retaliation claims.

In the alternative, if the 1991 amendment does not apply, the Title VII retaliation claims are governed by Price Waterhouse.  Prior to 1991, the lower courts had applied Price Waterhouse’s mixed-motive standard to all Title VII claims, including retaliation claims.  If Congress said nothing about retaliation claims in the 1991 amendments, as the University argues, then the pre-existing background mixed-motive rule should apply.

The United States has filed an amicus brief supporting Nassar.  Its brief focuses exclusively on Nassar’s first argument, based on the 1991 amendments.

In its reply brief, the University argues that all of the cases finding retaliation to be a form of race or sex discrimination were interpreting statutes that did not have a separate express retaliation provision.  Because Congress separately addressed race and sex discrimination in one provision, and retaliation in another, the Court should understand the 1991 provisions’ reference to discrimination on the basis of “race, color, religion, sex, or national origin” to more narrowly refer to the provisions that address ordinary intentional discrimination, not retaliation.  Moreover, the University argues that if the 1991 amendments do not apply, the “interpretive baseline” should be the Court’s recent decision in Gross, which, it argues, displaced any precedential force Price Waterhouse may have had.


This case lies at the crossroads of two lines of Supreme Court cases, each pointing in a different direction.  As Nassar notes, in recent years the Court has been sympathetic to retaliation claims, holding that retaliation is a form of sex or age discrimination to protect employees against retaliation even under statutes that do not mention retaliation.  On the other hand, as the University observes, the Court has recently been quite hostile to “mixed motive” theories of causation, seemingly embarking on a project to reinstall but-for causation as the basic rule under federal law, in the absence of express direction to the contrary from Congress.

In my view, the key to the case will be whether Nassar and the United States are able to persuade Justice Alito or Justice Kennedy that the University’s arguments cannot be reconciled with the Court’s prior decisions defining retaliation as a form of race, sex, or age discrimination.  In the 2008 case of Gomez-Perez v. Potter, these two conservative Justices joined the Court’s liberals to find that a provision of the ADEA, which expressly prohibited only age discrimination, implicitly prohibited retaliation as well.  Neither Justice is a fan of the mixed-motive theory of causation, but each felt bound by Supreme Court precedent construing retaliation to be a form of substantive discrimination.  The question here will be whether these Justices will believe that Title VII is distinguishable because Congress included an express retaliation provision elsewhere.

Recommended Citation: Kevin Russell, Argument preview: Proving retaliation under Title VII, SCOTUSblog (Apr. 23, 2013, 5:06 PM),