In January 2013, the United States Supreme Court granted review in a case that could determine whether a plaintiff can win a Title VII retaliation claim under a "mixed motive" theory. To explain the significance of this development, it is useful to start by examining the legal rules for retaliation claims.

Suppose that a Title VII plaintiff alleges that he or she was fired as retaliation for engaging in protected activity, such as complaining about discrimination. The plaintiff must establish a prima facie case of retaliation by showing:

• that he or she engaged in protected activity
• that he or she suffered a materially adverse action (something that would dissuade a reasonable employee from engaging in protected activity)
• that there is a causal connection between the protected activity and the materially adverse action

If the employee establishes a prima facie case, the employer must then articulate a legitimate, non-retaliatory basis for the action taken against the employee. If the employer does so, then the burden shifts to the employee to rebut the employer's justification.

In ordinary Title VII cases, the employee can rebut the employer's justification in two ways. First, the employee can show that the stated reason is a "pretext" for discrimination. For example, the employee can show that the stated reason is false or was not really the reason why the plaintiff suffered the adverse action. Second, the employee can show that, even if the stated reason is true and was part of the reason for the adverse action, discrimination was a motivating factor for the employer's actions. This is referred to as a "mixed motive" theory.

There have been questions raised over the years about whether the "mixed motive" rule applies outside of the context of a traditional Title VII claim, such as a discriminatory firing. The Supreme Court held that the mixed motive rule does not apply in age discrimination cases under the Age Discrimination in Employment Act. Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). However, the lower courts have been divided over whether the mixed motive rule applies in other contexts. The Supreme Court agreed to decide this issue in University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (cert. granted January 18, 2013).

The facts of the underlying case are straightforward. Dr. Nassar was a faculty member at UTSW. He claims that he was subjected to harassment by a supervisor because he is from the Middle East and is Muslim. He resigned his position at UTSW with the intent of taking a position at another hospital. In his resignation letter, he told UTSW that the primary reason for his resignation was racial and religious harassment by his supervisor. Dr. Nassar claims that UTSW then took steps to cause the other hospital to withdraw its job offer.

Dr. Nassar sued UTSW claiming that (1) he was "constructively discharged" by UTSW due to the racial and religious harassment, and (2) UTSW retaliated against him by causing the other hospital to withdraw the job offer. The jury found in favor of Dr. Nassar on both grounds. UTSW appealed to the Fifth Circuit. The Fifth Circuit panel rejected the constructive discharge claim, because Dr. Nassar did not prove that his work conditions were so intolerable that a reasonable person would have felt compelled to quit. However, the panel affirmed the jury's finding of retaliation. The panel did not discuss the mixed motive issue. The panel remanded to the district court for a redetermination of damages.

UTSW sought rehearing en banc before the full Fifth Circuit. By a 9-6 vote, the court denied rehearing. In a dissenting opinion, Judge Smith and three other members of the court argued that a prior decision of the Fifth Circuit applying the mixed motive rule to retaliation cases "is an erroneous interpretation of the statute and controlling caselaw and created an unnecessary circuit split."

The Supreme Court has now granted UTSW's petition for writ of certiorari and will decide the case. UTSW's petition frames the issue as follows:

Whether Title VII’s retaliation provision and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).

The Supreme Court should decide the case by June 2013.

The Nassar case arises solely under Title VII. It should be noted that the "mixed motive" standard operates differently under Chapter 21 of the Texas Labor Code, which is the state employment discrimination statute. A plaintiff can always win on the basis of "mixed motive" under Chapter 21. However, if the employer can prove that it would have taken then same action even without the discriminatory or retaliatory motivation, then the plaintiff cannot recover damages or obtain reinstatement. Section 21.125 states:

(a) Except as otherwise provided by this chapter, an unlawful employment practice is established when the complainant demonstrates that race, color, sex, national origin, religion, age, or disability was a motivating factor for an employment practice, even if other factors also motivated the practice, unless race, color, sex, national origin, religion, age, or disability is combined with objective job-related factors to attain diversity in the employer's work force.

(b) In a complaint in which a complainant proves a violation under Subsection (a) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court may grant declaratory relief, injunctive relief except as otherwise provided by this subsection, and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a complaint under Subsection (a), but may not award damages or issue an order requiring an admission, reinstatement, hiring, promotion, or back pay.

The significance of this provision is that, under Texas law, it is the employer that bears the burden of proving that it would have taken the same action. So the current state of the law can be summed up as follows:

1. As of right now, in the Fifth Circuit, the plaintiff in a retaliation case under Title VII can prevail under a mixed motive theory.
2. If the Supreme Court reverses the Fifth Circuit and adopts UTSW's position, the mixed motive rule will not be available in retaliation cases. Instead, the plaintiff in a retaliation case under Title VII must prove that he would not have suffered the retaliatory action "but for" the retaliatory motive.
3. Under the Texas statute, the plaintiff in a retaliation case (or any other employment discrimination case) can always prevail under a mixed motive theory, but the employer can always attempt to cut off damages by persuading the jury that the adverse action would have occurred anyway.

Depending on the specific facts of a case -- and on the outcome of Nassar -- the choice between Title VII and Chapter 21 may be significant in retaliation cases. When possible, it may be wise to plead a claim under both statutes.

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