Supreme Court Sets the Causation Standard for Retaliation Cases Under Title VII

A recent Supreme Court case involving retaliation claims under Title VII sets an important standard for companies facing retaliation claims. Retaliation claims are a significant problem for employers because they are generally easier to prove--it's easier to convince juries that retaliation has occurred rather than outright discrimination. Employers faced with an employee who has complained of discrimination (and thereby placing herself in Title VII's “protected activity” category) are at a distinct disadvantage to show that they did not factor the protected activity into a subsequent termination demotion or some other type of adverse action.

This makes perfect sense when you think about it – most jurors probably have difficulty believing that a modern company would engage in outright race or sex discrimination. However, those same jurors have little difficulty believing that a company would take action against someone who ratted the company out to the EEOC, or challenged a particular supervisor with a claim of discrimination, whether right or wrong. In fact, as I've said before, its not uncommon to see cases where a jury finds an employer not guilty of discrimination, but guilty of retaliating against an employee who makes a claim of discrimination that the jury did not believe.

So holding that a plaintiff employee must prove that an employer's retaliation was the “but for” cause of an employment decision is a significant move by the Court. I think it’s the right result– the language of that portion of Title VII that covers retaliation claims was not modified by the language of the Civil Rights Act of 1991.  That law amended the proof standard for run of the mill discrimination claims (so-called "status" claims, because the discrimination results from an employee's racial, gender, or religious status) from a “but for” standard to a much easier “motivating factor” standard.

What’s the difference? A “but for” standard means that without the illegal retaliation as a cause, the employer doesn't take the adverse employment action. That’s a much higher standard than “motivating factor”, which means that the protected activity could be one of several reasons for the employer's action, not necessarily the single "cause."

So this case is important for employers. Whether the president and Congress will follow the dissent's suggestion that they undertake some kind of legislative fix remains to be seen. But there is no doubt that for retaliation cases, the Court strengthened employers' chances with this decision.