On Monday, June 24, 2013, the United States Supreme Court defined the standard of causation for Title VII retaliation claims. See Univ. of Texas Southwestern Med. Ctr. v. Nassar, No. 12-484. The Court’s conservatives, in a 5-4 decision, ruled to limit how juries can decide retaliation lawsuits, holding retaliation claims must be proved according to “but-for causation”, not the lessened causation test stated in §2000e – 2(m). Under the motivating-factor test set out in §2000e—2(m), a plaintiff prevails if he or she shows that proscribed conduct “was a motivating factor” for the adverse employment action he or she encountered, “even though other factors also motivated the [action].”
Justice Ruth Bader Ginsburg wrote the dissent, and in a rare move, read it aloud in the courtroom. Ginsburg summarized the Court’s holding as “at odds with a solid line of decisions recognizing that retaliation is inextricably bound up with status-based discrimination, that §2000e—2(m) excludes retaliation claims.” Ginsberg stated the opinion reaches outside of Title VII to arrive at an interpretation of “because” that lacks sensitivity to the realities of work. Ginsburg further declared that the Court’s opinion is “guided neither by precedent, nor by the aims of legislators who formulated and amended Title VII.”
This point, lost on the Court, was not lost on Congress, or in prior Court opinions. When Title VII was enacted, Congress considered and rejected an amendment that would have placed the word “solely” before “because of [the complainant’s] race, color, religion, sex, or national origin.” Senator Case, a prime sponsor of Title VII, commented that a “sole cause” standard would render the Act “totally nugatory.” Quoting the Senator, Ginsburg noted that “Life does not shape up that way” and “[i]f anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of.” As Just O’Connor opined in a prior opinion, the but-for test can demand the impossible because it “challenges the imagination of the tier to probe into a purely fanciful and unknowable state of affairs.”
Ginsburg then called on Congress to change the law and overturn the Court.
In the end, the Court’s but-for causation standard does not mean that the plaintiff has failed to prove he or she was subjected to unlawful retaliation. It does mean, however, that proof of a retaliatory motive alone yields no victory for the plaintiff. Put otherwise, the Court’s view “permits proven retaliation to go unpunished.”