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U.S. Supreme Court Addressing Burden of Proof for Title VII Retaliation Claims

The Supreme Court of the United States recently heard oral arguments in a case called University of Texas Southwestern Medical Center v. Nassar, which will resolve the following issue:

Whether Title VII’s retaliation provision and similarly worded statutes require a plaintiff to prove but-for causation (i.e. that an employer would not have taken an adverse impact action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e. that an improper motive was one of multiple reasons for the employment action.)

For the non-lawyers, the “but-for” standard carries a higher burden of proof than the “mixed motive” standard.  The Supreme Court’s decision will resolve a split between different federal circuits.  Specifically, the First, Sixth and Eleventh circuits have adopted the higher “but-for” standard, and the Fifth and Eleventh circuits have adopted the mixed-motive standard.

Although this case might seem to address a technical issue that only lawyers would care about, the result of this case is also important to employers – because (a) it may affect how employers make employment decisions (in order to avoid lawsuits) and (b) it will also affect how employers decide to defend against Title VII retaliation lawsuits.

You can read the transcript from the oral arguments here:  Transcript of Oral Arguments.  You can also listen to an audio version of the oral arguments on the oyez.org website here:  Audio Recording of Oral Arguments.