Mixed Motive Is Not The Standard for Retaliation Cases Under Title VII

The Supreme Court ruled Tuesday on the standard used to evaluate whether an employer retaliates in violation of Title VII.  A plaintiff must show that "but for" the retaliation, (s)he would not have suffered adverse action. 

Title VII is a complex statute.  Under a specific provision of Title VII, all that a plaintiff needs to prove is that discrimination was a motivating factor in an employer's decision.  (42 U.S.C. Section 200e-2(m).)  Even if the employer had a valid, non-discriminatory reason for its actions, the employer is liable for unlawful discrimination. 

The retaliation provision of Title VII is separate from the discrimination provision.  It requires the plaintiff to show that the employer retaliated "because" (s)he opposed an unlawful practice or participated in a proceeding.  (42 U.S.C. section 2003e-3(a).)  In Univ. of Texas Southwestern Medical Center v. Nassar, 2013 DAR 8160, the Supreme Court said this provision means what it says.  It is not sufficient for an employee to claim that his/her opposition or participation was one of multiple reasons.  Retaliation must be the only decision. 

Of course, this decision greatly distressed the left-leaning justices of the court.  Even though the claims are based on two separate provisions in Title VII, with different language, they thought the lower, mixed-motive standard should prevail.  Oh well, this will give liberals another opportunity to introduce legislation to make suing an employer easier to do. 

I am not sure what impact the federal case will have in California.  You might remember that the California Supreme Court issue a ruling on mixed-motive retaliation cases under the Fair Employment and Housing Act (FEHA).  (Read my blog from February 11, 2013.)  The state court allowed mixed-motive cases to proceed.  However, the plaintiff is precluded from recovering damages.  Nevertheless, the plaintiff's lawyer can still recover his/her fees. 

Isn't that justice!