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Workers alleging retaliation must meet higher burden

Workers who allege their employer retaliated against them must meet a higher burden than merely showing that the desire to retaliate was one motivating factor, the U.S. Supreme Court has ruled in a 5-4 decision that vacates a $3.4 million jury verdict.

“Title VII retaliation claims must be proved according to traditional principles of ‘but for’ causation, not the lessened causation test” stated in the statute, the court held Monday in UT Southwestern v. Nassar.

The employee, Dr. Naiel Nassar, claimed his supervisor discriminated against him on the basis of his Arab ethnicity and Muslim religion by claiming he was not working hard enough and stating that “Middle Easterners are lazy.” He resigned in a letter that complained about the supervisor, and his job offer at the hospital’s clinic was rescinded. He sued for constructive discharge and retaliation under Title VII.

A jury found for Nassar on his job discrimination claims as well as his mixed-motive retaliation claim, finding that retaliation was a motivating factor despite the hospital’s claim that he was not qualified for the clinic job.

The 5th U.S. Circuit Court of Appeals agreed that retaliation claims under Title VII only require a showing that retaliation was a motivating factor, not that the harm would not have occurred but-for the retaliation.

But the Supreme Court disagreed, applying a higher standard to retaliation claims than discrimination claims based on the employee’s status.

The majority noted that retaliation claims are “being made with ever-increasing frequency” and “lessening the causation standard could also contribute to the filing of frivolous claims.”

Four dissenters complained that the majority creates a confusing dual standard for juries even though “retaliation for complaining about discrimination is tightly bonded to the core prohibition and cannot be disassociated from it.”
— Sylvia Hsieh

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