Title VII of the Civil Rights Act of 1964 generally prohibits
employment discrimination based on employee’s race, color, religion, sex and
national origin. Employees who bring lawsuits claiming employment
discrimination because of their status as a member of one of these protected
groups [status claims] must show that illegal discrimination was a motivating
factor or a reason that they suffered an adverse employment action. This is
sometimes referred to as the motivating factor test.
Employees may also bring separate claims under Title VII asserting that
they were retaliated against because they filed a charge of discrimination, because they complained about discrimination on the job, or because
they participated in an employment discrimination proceeding (such as an
investigation or lawsuit). Traditionally,
courts have applied a “but for” test, or required the employee claiming
retaliation to prove that “but for” their complaints or other
protected actions, they would not have suffered an adverse employment action
such as a firing, demotion, failure
to be promoted or harassment. Generally, this but for test is harder to
satisfy than the motivating factor test. Therefore, employees who bring
lawsuits typically prefer the motivating factor test.
Under Title VII, Congress codified a motivating factor
causation standard for status based claims. However, Congress did not codify a
causation standard for retaliation claims.
The Supreme Court, in University
of Texas Southwestern Medical Center v. Nassar, had to decide whether both types
of claims, retaliation claims and status based claims, should have the same
causation standard. A divided Supreme Court concluded that, despite being part
of the same statute, retaliation claims must still be proven “according to
traditional principles of but-for causation, not the lessened [motivating
factor test].” This decision is welcome
news for employers, as retaliation claims are among the most frequently
asserted in the employment context both nationally and in New Jersey today.
