Dr. Naiel Nassar was a faculty member at the Southwestern Medical Center and also a staff physician ar Parkland Memorial Hospital. The hospital and the university have an agreement that requires the hospital to offer vacant staff physician positions to university faculty members. Dr. Nassar made a claim that his supervisor, Dr. Levine, was biased against him despite her being involved in a promotional opportunity for him. His complaint stemmed from several alleged comments she made, including stating that “Middle Easterners are lazy.” Dr. Nassar, of Middle Eastern descent, complained to Levine’s supervisor, about feeling discriminated against and he entered into negotiations for a position with the hospital if he resigned from the university. When the hospital seemed willing to accept this proposal, he issued a resignation letter to the university wherein he stated that he was resigning due to Dr. Levine’s harassment and discrimination. Upset by this public embarrassment to Dr. Levine, Dr. Fitz objected to the hospital hiring Dr. Nassar. When the hospital rescinded its offer, Dr. Nassar eventually filed suit under Title VII, alleging race discrimination and retaliation.
The Court first looked at the traditional view of tort claims, pursuant to the Restatement of Torts, and the prevalent view that there must be proof that the defendant’s conduct did in fact cause the plaintiff’s injury (but-for analysis). The Court then presumed that this background is representative of Congress’ intent, absent an indication in the statute to the contrary. The Court then acknowledges that the 1991 amendment to the Civil Rights Act of 1964 was intended to codify the burden-shifting and lessened-causation framework (allowing a mixed-motive instead of a but-for motivating factor standard) of the Price Waterhouse case while eliminating the ability for the employer to defeat liability by showing that it would have made the termination decision based solely upon the legitimate termination reason. Instead, the statute allowed the employer to be able to reduce its liability to the employer with such evidence, and if deemed liable would only have to provide the plaintiff with declaratory and injunctive relief and attorney fees and costs but not monetary damages and a reinstatement order. However, the Court noted that Title VII’s anti-retaliation provision is set forth in a different section of the Act than its status-based discrimination provision(s). In the anti-retaliation section, it used the term “because” in describing the protection afforded. In particular, it states in relevant part that:
“It shall be an unlawful employment practice for an employer to discriminate against any of his employees…because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."
The Court then goes to great lengths to compare this provision to the ADEA statute at issue in the Gross case because both use the “because” terminology in explaining the criteria relevant to the protection. The Court indicated that if Congress intended to make the same motivating-factor standard apply to all Title VII claims, it could have done so. Instead, Congress limited the mixed-motive standard to just five of the seven protected categories under the Act, namely those articulated in §2000e-2, where particularly it states that:
“[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."
The Court was of the opinion that if Congress intended for retaliation - by way of either the employee’s direct opposition to employment discrimination or the employee’s submission of or support for a complaint that alleges employment discrimination - to be included within this this standard, it would have simply indicated as such. In vacating the decision of the 5th Circuit and remanding it back for further proceedings, the Court also stressed its concern that allowing a lessened-standard for retaliation claims would greatly burden employers and the court system due to the fact that retaliation claims filed with the EEOC has nearly doubled in the past 15 years – from just over 16,000 in 1997 to over 31,000 in 2012 – and that these retaliation claims are now the largest category of claims filed with the EEOC except for race discrimination. Because the 5th Circuit has reversed course and has already issued a ruling consistent with the Court’s opinion that retaliation claims are only entitled to a but-for or “because of” analysis, it is a certainty that Nassar’s victory will now be vacated in full.
Perhaps most concerning with the Court’s decision in Nassar is the concern expressed regarding the rise in retaliation claims. The Court seems bothered by the notion that a lessening of the causation standard for retaliation claims could contribute to the filing of frivolous claims, and syphon resources from the efforts of employer, administrative agencies and the court trying to combat workplace harassment. The Court then provides a scenario where an employee brings both a discrimination and retaliation claim and how an employer might be able to escape going to trial on the discrimination claim but yet be subjected to a trial on the retaliation action if a lessened causation standard applies.
In essence, the Court seems to support the notion that retaliation claims are easier to prove, and if you add to that a lessened mixed-motive standard, retaliation cases would survive summary judgment at a ratio much greater than status-based discrimination cases. One need only look at the Court’s statement in the Burlington Northern case – that a plaintiff's burden of establishing a materially adverse employment action is less onerous in the retaliation context than in the anti-discrimination context - to see why the Court feels this way. But is this a justifiable reason for adding a larger hurdle for retaliation claims? Is this decision allowing employers to retaliate against those that protest discrimination with little fear of reprisal? If this is the case, why would anyone try to oppose discrimination? Indeed, with less whistle-blowers, there will be less discrimination claims with witnesses readily available to support it and, as such, a higher number of cases dismissed on summary judgment. Perhaps that is the motive?! It is somewhat instructive to consider the very astutely drafted dissent of Justice Ginsburg in the Nassar case.
First citing to the Burlington decision, Justice Ginsberg, joined in her dissent by Justices Breyer, Sotomayor, and Kagan, points to the Court’s recognition that effective protection against retaliation is essential to providing effective protection against workplace discrimination. Indeed, fear of retaliation is why people stay silent and do not report discrimination or support co-workers in their pursuit of a remedy for discrimination s/he might be experiencing. She also notes that historically the ban on discrimination and the ban on retaliation have travelled together; Title VII complainants tend to raise both provisions of the Act in tandem. As such, reigning in retaliation claims by making them meet a stricter standard than discrimination claims is nonsensical and could certainly not have been Congress’ intent in amending Title VII in 1991. But this is exactly what the Court does in seizing upon §2000e-2(m), adopted by Congress in an attempt to strengthen Title VII, and turning it into a measure to reduce the force of retaliation claims.
Of note, Justice Ginsburg points to the Court’s statements that Congress made no assertion relative to an intent to include retaliation in the amended mixed-motive standard articulated in the §2000e-2(m), yet the Court neglects to look at the House Report, particularly Part II, which does elude to such an intent. Additionally, when the Court deemed the EEOC’s interpretation of §2000e-2(m) as inclusive of retaliation claims to not be persuasive due to the lack of depth of its interpretation, Justice Ginsburg astutely points to clear EEOC discussion that shows how and why it reached the conclusion that Congress intended retaliation and discrimination claims to share the same mixed-motived standard. The Court, as its precedence in Skidmore dictates, should have afforded deference to the interpretation of the statute in the EEOC’s compliance manual and internal directives. In fact, until this very ruling, the Court had been very clear that retaliation is actually a manifestation of status-based discrimination, and the Jackson case explained that “retaliation is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the complaint: an allegation of sex discrimination.” In the Title IX case Jackson, as well as the ADEA case Gomez-Perez v. Potter, the Court actually read retaliation into the statute even though it was silent on the subject. In a complete reverse of course, the Court is now reading retaliation unfavorably when the statute seems to suggest otherwise.
Most unfortunate about the decision is that the Court seems to interpret the law in a manner to get the end result it seeks. The dissent discusses how the Court took great pains in its decision in Gross to distinguish the ADEA from Title VII and to state that uniform interpretation of two statutes is sometimes unwarranted, yet freely borrows “because of” language from Gross to reach the end result it desires in the case at bar. So the employer prevailed in Gross because, according to the Court, the ADEA’s anti-discrimination prescription is not like Title VII’s; but the employer prevails again in Nassar because there is no textual difference between the ADEA’s use of “because” and the use of the same word in Title VII’s retaliation provision. When this author was in law school, one of his professors quipped that courts tend to decide how they want the case to resolve, and then figures out how to conjure up an opinion that supports its decision. The tail wags the dog. Or as Justice Ginsburg more appropriately states it, “What sense can one make of this other than “heads the employer wins, tails the employee loses?” Exactly!!!
The bottom line is that discrimination claims should be treated the same as retaliation claims. To do otherwise - when the claims typically co-exist in the same lawsuit - is confusing to the jury, perplexing to the parties, and basically nonsensical.
Professor Kendall D. Isaac
Appalachian School of Law