It has long been established that an employer cannot retaliate against an employee who opposes an unlawful employment practice under Title VII, e.g., workplace discrimination. However, a recent United States Supreme Court decision made proving a Title VII retaliation claim much more difficult for employees. University of Texas Southwestern Medical Center v. Nassar (2013) 133 S.Ct. 2517
Prior to the recent United States Supreme Court decision, an employee could prove a Title VII retaliation claim by showing (1) that the employee engaged in a protected activity e.g., complained about unlawful workplace discrimination; (2) the employee subsequently suffered an adverse employment action, e.g., demotion, suspension or termination; and (3) the employee’s protected was at least a “motivating factor” in the adverse employment action. Passantino v. Johnson & Johnson Consumer Products, Inc. (9th Cir. 2000) 212 F.3d 493. The less burdensome “motivating factor” causation standard allowed the employee to prove retaliation even if the employer could show some other lawful basis for the adverse employment action, e.g., poor work performance. As long as the employee could show that the “protected activity” was at least a “motivating factor” in the adverse employment action, the employee could successfully prove a Title VII retaliation claim.
In University of Texas Southwestern Medical Center the United States Supreme Court rejected the “motivating factor” causation standard and held that a Title VII retaliation claim now requires proof that the protected activity was the “but for” cause of the adverse employment action. The more burdensome “but for” causation standard requires an employee show that the adverse employment action would not have occurred “but for” the protected activity. The heightened “but for” standard will likely allow employers to escape liability upon merely showing some colorable non-discriminatory purpose for the adverse employment action.
Although the United States Supreme Court decision will undoubtedly make Title VII retaliation claims more difficult for employees, it will not preclude California employees from obtaining legal remedies for workplace retaliation. California employees may still bring retaliation claims under the California Fair Employment and Housing Act also known as FEHA, where at least presently court’s still apply the “motivating factor” causation standard.
If you believe you have been retaliated against by your employer contact an experienced employment attorney at the JCL Law Firm at 1-888-498-6999 for a free consultation.