Presented at the Eighth Annual Labor & Employment Law Colloquium, Las Vegas, Nevada, September 2013.
18 Pages Posted: 21 Oct 2013 Last revised: 26 Jul 2014
Date Written: 2014
The Supreme Court decided in University of Texas Southwestern Medical Center v. Nassar that the “a motivating factor” level of proof to establish liability set forth in §§ 703(m) and the same-decision defense to full remedies of 706(g)(2)(B) of Title VII of the Civil Rights Act of 1964 does not apply to claims of retaliation brought pursuant to § 704(a). Instead, Title VII retaliation must be the “but-for” cause of the adverse action plaintiff challenges. The obvious impact of Nassar is that it makes it more difficult for plaintiffs to prove retaliation. In some ways, Nassar is a surprise because the Court had consistently held for plaintiffs in a number of retaliation cases. In other ways, it was not a surprise that the Court would move its retaliation jurisprudence more in line with its recent pro-employer, anti-civil rights interpretation of statutes typified by its decision in Gross v. FBL Financial, Inc. To reach its desired decision, the Court had to forego the plain meaning approach to statutory interpretation that in Gross it said was to be used. The Court reached its conclusion by hiding the terms and the structure of Title VII in plain sight while replacing the actual terms of the statute with terms of its own creation. Further, the majority of the Court was captivated by a hypothetical presented by counsel for the employer of employees gaming retaliation law, a fact pattern that does not appear to have happened in any reported case, with that captivation indicative of the majority’s perspective favoring employers over employees in its recent antidiscrimination decisions.
Keywords: Employment Discrimination, Retaliation, Statutory Interpretation, U.S. Supreme Court
JEL Classification: J71, K31, K41
Suggested Citation: Suggested Citation
Zimmer, Michael J., Hiding the Statute in Plain View: University of Texas Southwestern Medical Center v. Nassar (2014). Presented at the Eighth Annual Labor & Employment Law Colloquium, Las Vegas, Nevada, September 2013.; Loyola University Chicago School of Law Research Paper No. 2013-011. Available at SSRN: https://ssrn.com/abstract=2341828 or http://dx.doi.org/10.2139/ssrn.2341828