In Burrage v. United States, a little-noticed criminal case, the Supreme Court clarified what it meant by “but-for” causation — and explained in easy-to-understand language ("the straw that broke the camel's back") what a jury must find in order for a plaintiff to prevail. This reformulation provides much-needed ammunition for employees who bring retaliation claims under Title VII.
This expert analysis by TELG principal Tom Harrington and TELG managing principal R. Scott Oswald was published by Law360 on June 4, 2014. The full article is available at Law360. (Site requires paid subscription.)
The Rebranding Of “But-For” Causation In Title VII Cases
Any employment attorney is familiar with the elements of a claim of retaliation under Title VII of the Civil Rights Act. An employee discloses what he or she believes to be discrimination, management takes an adverse action against the employee and the circumstances suggest that there exists some kind of impermissible relationship between the disclosure and the personnel action.
There is always back and forth by counsel regarding the company’s “legitimate business reasons” and whether those reasons are “mere pretext.” But a case is often won or lost — especially at the summary judgment phase — by either demonstrating or, for management's counsel, attacking causation. Indeed, that an employee’s disclosure is protected and that she suffered some sort of adverse action may, for strategic reasons not discussed here, be established by facts to which defense counsel may even stipulate.