How Much, Causation, Gets You Retaliation?

This is kind of a snappy little jingle if you recite it in the correct pentameter. The story behind it is fairly significant, however. The Supreme Court has agreed to hear a Title VII retaliation case in order to determine the standard of proof for retaliation claims.

Retaliation cases are typically much easier to prove than the underlying discrimination allegations that form the basis of a retaliation claim. As I've noted before, it's not uncommon to have juries reject claims of illegal discrimination, but find that an employer retaliated against an employee for making such a claim.

The Court agreed to examine the fundamental issue in a retaliation claim: how much proof is required to show that an employee's protected activity, e.g. filing a claim of discrimination or participating in an EEOC discrimination investigation, actually caused the employer to take an adverse employment action against her? The stricter standard, and the one favored by employers generally, is the so-called "but-for" standard, under which an employee has to show that the protected activity was the cause of the adverse action. In other words, a "but-for" standard requires the plaintiff to show that without the protected activity, the employer doesn't make the adverse employment decision. A much lower standard is the so-called "mixed motive" standard, which simply requires that the protected activity be a factor in the adverse employment decision.

Obviously the mixed motive standard is a nightmare for most employers. Invariably, a management decision maker will be aware that her employee has either filed a charge of discrimination or complained about discrimination in the past. Juries are quick to find that this knowledge of past protected activity means that it was considered in any kind of subsequent adverse action decision. Accordingly, it's very easy for juries to find retaliation under a mixed motive standard.

This particular case is on appeal from the federal Fifth Circuit Court of Appeals, which reversed the plaintiff medical school professor's basic discrimination claim on appeal, but upheld the retaliation claim using the mixed motive standard. The stakes are high for the employer community on this one, so I'll be watching closely for reports on the oral argument and, ultimately, the decision.