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Standard in Title VII Retaliation Case

Mr. Naiel Nassar, who is of Middle Eastern descent, held a faculty position at the University of Texas Southwestern Medical Center (hereinafter "The University") and a staff position at the associated Dallas Parkland Hospital (hereinafter "The Hospital"). Mr. Nassar complained that his University supervisor treated him differently than his colleagues, made derogatory comments and tried to delay his promotion. Mr. Nassar requested to only work at the hospital so he was no longer under the University supervisor. The department chair at the University objected to the request citing an affiliation agreement requiring that all physicians working at the Hospital be faculty members at the University. Without the University's knowledge, Mr. Nassar continued to discuss the plan with the Hospital and was offered a position at the Hospital, if he resigned his faculty position. Mr. Nassar submitted a resignation letter in which he claimed he was giving up his faculty position because of the "harassment and discrimination" by his supervisor. However, the University's department chair then met with the Hospital's Chief Medical Officer and the Hospital revoked its offer of employment.

Mr. Nassar filed suit against the University, claiming constructive discharge and retaliation. He argued that the department chair blocked the Hospital from hiring him because of his complaints about his supervisor. The University argued that its actions were consistent with the affiliation agreement, and it would have followed the same course of action in the absence of Mr. Nassar's complaints.

Over the past fifteen (15) years, the number of Equal Employment Opportunity Commission (hereinafter "EEOC") charges alleging retaliation has doubled. One possible reason for this increase was a 2006 Supreme Court, Burlington Northern v. White, which clarified and expanded the scope of what constituted an adverse employment action giving rise to a valid claim of retaliation.

Similarly, many courts have applied a "mixed-motive" standard which has enabled employees to prevail on retaliation claims. In 1991, Congress amended Title VII of the Civil Rights Act to state, "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion or national origin was a motivating factor for any employment practice even through other factors also motivated the practice." (Emphasis added). This standard, called "mixed motive," requires only that an employee establish that his or her protected status was a reason for the employment decision, but not necessarily, the only reason. Congress also amended Title VII to prohibit an employee's recovery if an employer demonstrates that it would have taken the same action regardless of any impermissible motivating factor for the unlawful employment action. These amendments created confusion as to whether the new mixed motive standard applied to all Title VII claims, including retaliation, or whether it applied only to discrimination claims.

In Mr. Nassar's case, the trial court applied a mixed motive standard, instructing the jury that Mr. Nassar only needed to prove that retaliation was a motivating factor for the university's actions. At trial, Mr. Nassar prevailed on his retaliation claim and the decision was upheld by the Court of Appeals.

However, the Supreme Court vacated and remanded the judgment, stating that the mixed motive standard applies to unlawful employment practices under race, color, religion, sex and national origin, but the amendments to Title VII did not affect retaliation claims. Explicitly rejecting the mixed motive standard for retaliation claims, the Supreme Court stated that an employee asserting a Title VII claim of unlawful retaliation must establish that a retaliatory motive was the "but for" cause of the adverse employment action. In other words, the employee must prove that the adverse employment action would not have occurred without discriminatory intent.

If you feel you were retaliated against at work based on complaints about harassing treatment or discrimination concerning your race, color, religion, sex or national origin, contact an attorney to discuss your legal rights.

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