A recent U.S. Supreme Court ruling makes it more difficult for employee plaintiffs to prove retaliation in employment discrimination cases. In University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), a physician plaintiff of Middle Eastern descent complained that one of his supervisors was discriminating against him based on his religion and ethnicity. His job offer at the hospital was withdrawn, and he filed a Title VII retaliation suit, alleging retaliation for his complaints of harassment.
The Fifth Circuit held that retaliation claims—like status-based claims—require only that the plaintiff show that retaliation was a motivating factor for the adverse employment action, not its but-for cause. The Supreme Court reversed and held, in retaliation claims, the plaintiff must prove that, but for a retaliatory motive, the adverse employment action would not have been taken.
This holding abrogates the “mixed motive” analysis for Title VII retaliation claims that had been adopted by some circuits. Applying the “but for” standard, as the Nassar Court has mandated, sets a higher burden for plaintiffs, requiring they prove that retaliation was the determining influence for an adverse action taken by an employer.