The Supreme Court Rejects “Mixed Motive” in Title VII Retaliation Cases

By a 5-4 vote, the United States Supreme Court held that the plaintiff in a Title VII retaliation case cannot rely on a "mixed motive" theory.  The case is University of Texas Southwestern Medical Center v. Nassar.  The case was discussed and previewed in this article.

The majority opinion by Justice Kennedy summarized its reasoning as follows:

In sum, Title VII defines the term "unlawful employment practice" as discrimination on the basis of any of seven prohibited criteria: race, color, religion, sex, national origin, opposition to employment discrimination, and submitting or supporting a complaint about employment discrimination. The text of §2000e–2(m) mentions just thefirst five of these factors, the status-based ones; and it omits the final two, which deal with retaliation. When it added §2000e–2(m) to Title VII in 1991, Congress inserted it within the section of the statute that deals only with those same five criteria, not the section that deals with retaliation claims or one of the sections that apply to all claims of unlawful employment practices. And while the Court has inferred a congressional intent to prohibit retaliation when confronted with broadly worded antidiscrimination statutes, Title VII’s detailed structure makes that inference inappropriate here. Based on these textual and structural indications, the Court now concludes as follows: Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.

In a dissenting opinion, Justice Ginsburg stated:

In so reining in retaliation claims, the Court misapprehends what our decisions teach: Retaliation for complaining about discrimination is tightly bonded to the core prohibition and cannot be disassociated from it. Indeed, this Court has explained again and again that "retaliation in response to a complaint about [proscribed] discrimination is discrimination" on the basis of the characteristic Congress sought to immunize against adverse employment action.

The Court shows little regard for the trial judges whowill be obliged to charge discrete causation standards when a claim of discrimination "because of," e.g., race is coupled with a claim of discrimination "because" the individual has complained of race discrimination. And jurors will puzzle over the rhyme or reason for the dual standards. Of graver concern, the Court has seized on a provision, §2000e–2(m), adopted by Congress as part of an endeavor to strengthen Title VII, and turned it into a measure reducing the force of the ban on retaliation.

(citation omitted).

It should be noted that the "mixed motive" provision in Chapter 21 of the Texas Labor Code contains similar language that refers to "race, color, sex, national origin, religion, age, or disability," but not to retaliation.  Tex. Labor Code § 21.125(a).  The Texas Pattern Jury Charges, supported by some case law, had already taken the position that "but for" causation is required for retaliation.  PJC 107.9.  However, the general discrimination question (PJC 107.6) is based on a mixed motive theory.  This may be a snare for the unwary.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes

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