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Argument recap: Close call on Title VII retaliation case

Yesterday the Court heard oral argument in University of Texas Southwestern Medical Center v. Nassar.  As I explained in the preview, at issue in the case is whether a Title VII plaintiff alleging retaliation must show that retaliation was the “but for” cause of his termination or was instead simply one of several “motivating factors.”  The plaintiff in the case, Naiel Nassar, went into the argument needing to persuade either Justice Alito or Justice Kennedy to vote in the employee’s favor, as they had in a prior retaliation case involving a related question.  Based on the argument, it is clear he will not get Justice Alito’s vote, and Justice Kennedy gave him scant reason for optimism.

The University’s counsel, Daryl L. Joseffer, faced expected opposition from the Court’s more liberal Justices.  His central challenge was to convince the Court that a special provision Congress enacted in 1991 – which applies a “motivating factor” test to claims of “race, color, religion, sex, or national origin” discrimination – does not also apply to claims of retaliation.   That task was made difficult by a prior decision,  Gomez-Perez v. Potter, from the Court finding that retaliation is a form of age discrimination under a statute that did not specifically outlaw retaliation, a decision in which Justices Kennedy and Alito joined with the liberals to find for the employee.   But, Joseffer pointed out, in that case (and prior cases like it), the Court had not been faced with a statute, like Title VII, that expressly defined substantive discrimination and retaliation as separate and distinct unlawful employment practices.  To treat retaliation and discrimination as the same thing under Title VII would render the retaliation provision surplusage.

That argument made little headway with Justices Ginsburg, Sotomayor, and Kagan, who thought it unlikely that Congress would have intended different standards for proving causation for different kinds of unlawful practices.  Joseffer countered that Congress could well have decided that race and sex discrimination were so pernicious as to require the strong medicine of motivating factor causation, yet think that the anti-retaliation right, as a “derivative prophylactic provision,” did not warrant that special treatment.

Justice Kagan, however, insisted that when Congress enacted the motivating factor provision, the Court had already held that retaliation was a form of race discrimination, so it would have understood that there was no need to separately address retaliation and substantive discrimination.

Justice Alito, in one of several friendly questions to the University’s counsel, noted that most of the Court’s cases equating retaliation with discrimination came after the 1991 amendment.

Toward the end of Joseffer’s time, Justice Breyer attempted to ask a convoluted question, ending with the acknowledgment that Joseffer might be better off telling him “Judge, you better think this out on your own” and preserve his time for rebuttal.  (Which Joseffer mostly did.)

Nassar’s lawyer, Brian P. Lauten, faced a barrage of hostile questioning from Justices Scalia, Alito, and the Chief Justice.  If Congress understood that retaliation was a kind of substantive discrimination, why bother to enact a separate retaliation provision, Justice Scalia wanted to know.  Among other things, Lauten said that the express retaliation provision was somewhat broader than the protection the Court had previously found implicit in the prohibition against race discrimination (for example, covering retaliatory acts outside the workplace).

But it would have been so easy for Congress just to expressly mention the retaliation provision in the 1991 amendment, the Chief Justice noted.

Justice Alito suggested that it would be entirely reasonable for Congress to create a higher standard for retaliation.  A motivating factor analysis, he suggested, “creates special problems” in the retaliation context.  An employer who has legitimate reasons to fire a worker, and is accused of being a racist on the eve of the worker’s termination, might well be partially motivated by his anger at the embarrassing and unfounded allegation.

In one of his very few, and not terribly revealing, questions, Justice Kennedy asked Lauten whether he agreed with the federal government that if the motivating factor provision applied, an employer could avoid liability for damages by proving that it would have taken the same action anyway.  (Lauten agreed.)

Lauten’s back-up argument – that if the 1991 amendment does not apply, then the Court should implement a similar “motivating factor” test established in Price Waterhouse v. Hopkins – seemed to make little headway.  Justice Ginsburg thought it implausible for the same reason she was skeptical of the University’s argument – it would result in different tests for retaliation and substantive discrimination claims.  Justice Alito noted that the Court had not applied Price Waterhouse to retaliation claims previously.

Arguing for the United States as an amicus supporting Nassar, Melissa Arbus Sherry was immediately confronted by Justice Kennedy’s practical concerns.  Retaliation claims seemed to be quite common now and can be used “as a defense when you know you are about to be” fired, he suggested.  “If that’s true, shouldn’t we be very careful about the causation standard?”  Sherry tried to allay those concerns, pointing out that a retaliation claim does not arise unless the worker has made a reasonable good faith allegation of discrimination.  But the Chief Justice noted that the employer still must litigate such a claim through the point of summary judgment, and Justice Alito noted that there are still a lot of claims are meritless, yet might not be made in bad faith and therefore would still provide a basis for a retaliation suit.

Echoing a point Joseffer had made, the Chief Justice and Justice Alito both suggested that discrimination on the basis of race or sex was simply so much more serious than retaliation that Congress could well have decided to reserve the special treatment of a motivating factor test to the core prohibitions.  Sherry responded that the substantive provisions are only meaningful if they can be enforced, and robust anti-retaliation is essential to that enforcement.

By the time of Joseffer’s rebuttal, the Court had apparently heard enough, asking no questions and allowing the University’s counsel to try to simplify the case as resolved by “two very simply legislative drafting rules or interpretive principles.”  First, the Court has held that but-for causation is the norm, unless Congress specifically says otherwise.  Second, the canon against surplusage precludes applying the Court’s prior precedents treating retaliation as a form of discrimination from Title VII because that would render the separate retaliation provision redundant.


It seems likely that this case will, one way or the other, divide the Justices five to four.  Justices Ginsburg, Breyer, Sotomayor, and Kagan all were openly hostile to the University’s position; the Chief Justice and Justices Scalia and Alito were just as hostile to Nassar (and Justice Thomas seems unlikely to break ranks and side with the liberals).  Justice Kennedy did not ask many questions, so it is difficult to predict his vote with confidence, but by and large, his questions were mostly hostile toward Nassar.  Most significantly, the pragmatist Justice expressed genuine concern about the practical consequences of Nassar’s rule for employers.  And given that Justice Kennedy regularly sides with employers in close employment cases, I would not at all be surprised to find workers having to prove but-for causation in future retaliation cases.

Recommended Citation: Kevin Russell, Argument recap: Close call on Title VII retaliation case, SCOTUSblog (Apr. 25, 2013, 9:55 AM),