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U.S. Supreme Court Makes it Harder for Employees to Prove Workplace Retaliation


The United States Supreme Court recently issued a ruling in a case making it much harder for Americans to sue businesses for retaliation and discrimination, leading a justice to call for Congress to overturn the court’s actions.

The court’s conservatives, in two 5-4 decisions, ruled that a person must prove that an unlawful reason (such as race, gender, religion, national origin, etc.) was the reason for employer’s decision to terminate them.

In University of Texas S.W. Medical Center v. Nassar, the plaintiff alleged that his employer sabotaged his job prospects because he had previously complained about a supervisor’s alleged bias against Arabs and Muslims. The lower court ruled that a plaintiff can prevail if he shows that the retaliation is simply a “motivating factor” for an employer taking an adverse action. Justice Anthony Kennedy, writing for the Supreme Court, rejected the lower court’s reasoning and explained  that claimants asserting retaliation under Title VII must now meet the higher “but for” standard, which the Supreme Court previously had applied only to discrimination claims brought under the Age Discrimination in Employment Act.

Although a plaintiff in a Title VII retaliation case may be able to show that a desire to retaliate for protected conduct played some part in an adverse employment action, proving that the adverse action would not have occurred in the absence of the desire to retaliate is a much higher hurdle for a plaintiff to clear, particularly when the employer has convincing, legitimate reasons for the challenged employment action.

The Supreme Court’s ruling in the Nassar case will make it more difficult for employees to prevail in Title VII retaliation claims and easier for employers to dispose of such claims at the pretrial stage of litigation.would not have been taken in the absence of the desire to retaliate.  This is a significantly higher standard of causation than the one applicable to claims of discrimination based on race, sex, or other factors protected by Title VII (referred to by the Court as “protected status” discrimination).  In those cases, the claimant need only show that the protected status was a motivating factor for the challenged employment action – that is, the employer took the protected status into consideration in taking the employment action, but that status was not necessarily the determinative factor.

Axis Legal Counsel represents clients  in numerous kinds of lawsuits and disputes involving some of the nation’s largest employers. Whether it is harassment, discrimination, retaliation, hostile work environment, wage/hour, or other claims, Axis Legal Counsel is experienced in the field of employment and labor law and focused on providing high-quality legal service.

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