Is it 'A' or is it 'The'? Deciphering the Motivating-Factor Standard in Employment Discrimination and Retaliation Cases
Kendall D. Isaac
Appalachian School of Law
January 23, 2014
1 Tex. A&M U. L. Rev 55 (2013)
The recent Supreme Court decision in University of Texas Southwestern Medical Center v. Nassar has brought exposure to a prevalent problem in employment discrimination and retaliation cases: there is great discrepancy in how plaintiffs have to prove and courts have to assess these claims. Depending on whether the case is based on discrimination or retaliation pursuant to the ADA, ADEA, or Title VII, the standard that needs to be met might be that the plaintiff must prove that discrimination was “the” motivating-factor for the adverse employment action or that it was “a” motivating-factor for the action. Adding even greater confusion is the fact that, if an employee argues that they are the victim of discrimination (such as on the basis of national origin) and retaliation, the employee might have to prove that their national origin was “a” motivating-factor in the discrimination case and “the” motivating-factor in the retaliation aspect of the case.
If this sounds confusing to scholars and attorneys, imagine how confusing these various standards within one case can be for potential litigants, judges unfamiliar with employment law, and a member of the jury! This Article delves into these muddy waters and attempts to highlight the issues, spotlight the statutes, and ultimately formulate a working motivating-factor standard that can be infused into all of the various employment discrimination statutes and thus result in a consistency in interpretation and application.
Number of Pages in PDF File: 28
Keywords: Title VII, motivating-factor, mixed-motive, Nassar, employment law, discrimination, retaliation
JEL Classification: J00, J7, J71Accepted Paper Series
Date posted: January 27, 2014
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