We are barely into the New Year and the U.S. Supreme Court already has a significant employment law case on its docket. The Court agreed to hear Nassar v. University of Texas Southwestern Medical Center (No. 12-484). In Nassar, the Court will decide whether an employee can assert retaliation claims under Title VII if discrimination was simply one of the reasons the employer took adverse action. The Court’s decision will finally provide guidance on whether employees may proceed under a “mixed motive” theory or whether they must proceed under a “but for” theory. In “mixed motive” cases, the employee may prove discrimination even if the employer possessed a legitimate, nondiscriminatory reason for taking adverse action against the employee. In these cases, the employee need only demonstrate that discrimination was one of the motives for the adverse action. In contrast, if employees are required to meet the “but for” standard then they must demonstrate the adverse action would not have occurred but for the employer’s discriminatory motive.
In Nassar, the plaintiff was a physician and faculty member at the University of Texas Southwestern Medical Center. He alleged he was constructively terminated based upon his supervisor’s harassment. Nassar alleged the harassment was the result of his Middle Eastern descent. He further alleged retaliation because after he resigned from his position, his employer prevented him from obtaining subsequent employment at a clinic affiliated with the University. There was evidence that Nassar’s supervisor monitored his performance and productivity more closely than other physicians. The jury found in favor of Nassar and awarded him in excess of $436,000(1) in back pay, over $3 million in compensatory damages, and $489,927 in attorney’s fees and costs.
On appeal, the University argued that it denied Nassar’s subsequent employment in accordance with an affiliation agreement between the University and the clinic. The director of the clinic testified at trial that Nassar’s supervisor informed him that Nassar’s complaints of harassment were the reason he objected to Nassar’s employment at the clinic. In effect, a legitimate, nondiscriminatory reason existed for denying Nassar’s employment at the clinic, but there was also evidence that discrimination played a role — the classic mixed motive case.
The Supreme Court’s resolution of this case has broad implications. The Supreme Court will consider not only whether Title VII’s retaliation provisions requires “but for” causation, but also whether other similarly worded employment statutes require the same level of proof. The “but for” standard is employer-friendly as it requires a plaintiff to demonstrate that discrimination was the reason for the adverse action. Under a mixed motive theory an employee need only demonstrate discrimination was one of the reasons. The mixed motive theory is legislatively created. The legislature’s action in specifically permitting mixed motive under Title VII discrimination claims (not retaliation) will be pitted against the Supreme Court’s prior decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 179-80 (2009). In Gross, the Supreme Court held that the mixed motive theory did not apply to claims under the Age Discrimination in Employment Act. The Supreme Court determined that Congress limited the application of the mixed motive theory to Title VII. Currently, the federal courts in Ohio interpret Gross to mean that the mixed motive theory is only available in Title VII discrimination cases and not available under other employment law statutes. In contrast, the federal courts in Florida interpret Gross to apply only to age discrimination claims; therefore, in Florida the mixed motive theory is available under other employment law statutes.