Higher Standard for Retaliation Claims Under Title VII

On June 24 the U.S. Supreme Court announced its decision in University of Texas Southwestern Medical Center v. Nassar.  Though it did not garner the attention of the Proposition 8 and DOMA cases, the Nassar decision will have substantial impact on employees bringing claims for retaliation under Title VII.

In Nassar, the issue before the Court was what standard of causation to apply for claims of employment retaliation brought under 42 U.S.C. § 2000e-(3)(a).  The Plaintiff/Respondent argued that the Court should use the same standard as is required for claims of status-based discrimination brought under 42 U.S.C. § 2000e-2(a), which requires that the employee’s protected status be merely a “motivating factor” for the unlawful discrimination.

The Court rejected the plaintiff’s argument and held instead that a plaintiff claiming retaliation must show that the employee’s protected conduct was a but-for cause of the alleged unlawful retaliation—i.e., if not for the conduct allegedly retaliated against, the retaliatory conduct would not have happened.  Thus, the Court announced a higher standard of proof that applies only to claims for retaliation.

This decision is another major disincentive to many plaintiffs who would seek relief in federal court, as it makes it easier for the court to dismiss their cases on summary judgment.  As the Court notes, claims for retaliation have increased from 16,000 filed in 1997 to approximately 31,000 in 2012.  The decision in Nassar may well reverse that trend by making federal courts less attractive to plaintiffs with retaliation claims.

But in Washington, the law remains unchanged.  Washington’s Law Against Discrimination requires the employee’s protected conduct be merely a “substantial factor” for the adverse employment decision, including retaliation.  RCW 49.60.210; Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79 (1991).  This is yet another way in which Washington law is more hospitable to plaintiffs than federal law.

–Ryan Solomon

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