Read the August 2013 issue of Court Report, which includes the topic Title VII retaliation and looks at the University of Texas Southernwestern Medical Center v. Nassar case. This newsletter is an ACSBA member benefit.

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August 2013 Issue of Court Report

• Title VII - Retaliation

Univ. of Texas Southernwestern Medical Center v. Nassar, 133 S.Ct. 2517, (U.S.June 24, 2013)

This case was not an education case, but is summarized here because it could potentially have impact on school boards. The National School Board Association filed an amicus brief.

In this case, a Middle Eastern doctor was employed by a university and its affiliated hospital. After complaining that one of his supervisors at the university was harassing him on the basis of his religion and ethnicity, the doctor resigned from his position at the university. In response, the supervisor caused him to lose his position with the hospital. The doctor sued the university alleging that the supervisor’s harassment caused his constructive discharge from the university and that the supervisor retaliated against him after he complained about her harassment. Attrial, the jury found in favor of the university and the doctor appealed. The Fifth Circuit Court of Appeals found in favor of the university as to the constructive discharge claim, but reversed the jury’s decision as to there taliation holding that the doctor only had to show that the retaliation was a motivating factor in losing his job; not the higher standard of “but-for” causation. The university appealed to the United States Supreme Court.

The mixed motive standard requires an employee show that an illegal motive was one of multiple reasons for the employ mentaction. The higher “but-for” standard requires the employee show that the employer would not have taken the action but for its illegal motive. In closely reviewing the text and structure of the retaliation provisions, the Supreme Court held that the “motivating factor” or “mixed motive” standard only applied to claims of discrimination based on the employee’s protected classification. In reviewing congressional amendments to Title VII, the Court noted that Congress intended to hold employers liable for discriminatory conduct, even if the adverse employment action was also motivated by legitimate reasons. Because the same language was not included in the retaliation portion of the statute, the Court held that employees would have to overcome the higher “but-for” standard.

— Jayne Harrell Williams

Jayne is a shareholder with the law firm of Hill, Hill, Carter, Franco, Cole & Black

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