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After Nassar: Title VII Retaliation Claims Are Tougher — But Still Viable

This June, in a blistering dissent from the bench, Justice Ruth Bader Ginsburg decried the U.S. Supreme Court’s “misguided judgment” in University of Texas Southwestern Medical Center v. Nassar and called on Congress to restore to employees the rights stripped by a decision that “defies logic.”

A law to reverse Nassar certainly would be welcome, but it’s not the sole hope for employee advocates. True, Nassar makes it harder to prove that an employer’s action amounted to unlawful retaliation against a whistleblowing employee under Title VII of the Civil Rights Act of 1964.

But, Justice Ginsburg’s pessimism notwithstanding, it’s hardly fatal to such a claim.

Nassar‘s new “but for” retaliation standard doesn’t require an illegal motive to be the sole reason for an adverse action. Rather, the decision asks plaintiffs to be ready to convince a jury that an illegal motive was a determining factor in such an action.

This is a surmountable challenge. It calls for the early marshaling, and convincing presentation, of two types of evidence:

  • First, where it’s available, direct evidence of illegal motivation on the part of an employer. The key here is quality of evidence: Ideally, the motive is admitted or can be inferred with minimal effort.
  • Second, circumstantial evidence of such illegal motivation. The key here is quantity of evidence. Multiple sources are a necessity; statistics alone won’t suffice.

To reach a jury post-Nassar, a Title VII retaliation claim must offer powerful direct evidence, plentiful circumstantial evidence, or both — a strong case, in the words of Justice Anthony Kennedy’s majority decision, “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”

Note that Justice Kennedy didn’t find this new standard dispositive even in Nassar itself.  Indeed, he explicitly rejected an argument by the University of Texas, the employer/defendant, that a “but for” test spelled immediate doom for Dr. Naiel Nassar’s retaliation claim as a matter of law.

Instead Justice Kennedy deferred to  authorities closer to the facts, remanding the case to the U.S. Court of Appeals for the Fifth Circuit, which in turn kicked it back to the original trial court, the U.S. District Court for the Northern District of Texas.

The same fact-based process will apply to retaliation victims everywhere. Nassar sets a new bar, but it demands no particular outcome: A trial court still will weigh the facts, and a strong retaliation case will remain a strong retaliation case.

For plaintiffs, the challenge is to put forward enough good facts to reach a jury. Once at trial, jury instructions will be a bit tricky — discrimination and retaliation claims now have different standards of proof — but a sympathetic plaintiff’s advantage will remain.

Indeed, this scenario may still play out in Nassar itself; the facts may yet be held to vindicate a jury’s $3.6 million verdict in favor of Dr. Nassar — an award later reduced to about $738,000 to comply with a statutory cap.

Dr. Nassar, who is of Middle Eastern descent, had served as both a faculty member at the University of Texas Southwestern Medical Center (UTSW) and as a doctor at the affiliated Parkland Memorial Hospital, the Dallas hospital where President John F. Kennedy died after being shot on November 22, 1963.

The doctor had complained about ongoing discrimination by a superior at UTSW. Ultimately he sought to drop his UTSW position in order to work solely at Parkland, an accommodation that would have been unusual under the terms of the UTSW/Parkland affiliation.

After securing a rare offer of Parkland-only employment, however, Dr. Nassar wrote a letter to multiple recipients that again complained of discrimination by his UTSW superior. Peeved by the action, a higher-ranking UTSW superior pressured Parkland to withdraw its offer of employment — which it did, citing a policy that essentially ruled out Parkland-only positions.

Dr. Nassar left both facilities and later sued UTSW under Title VII, claiming discrimination and retaliation. He won a jury verdict on both counts.

There was no quarrel about the standard of proof for Dr. Nassar’s discrimination claim: In the Civil Rights Act of 1991, the U.S. Congress amended Title VII to outlaw employer actions where discrimination is “a motivating factor, even though other factors also motivated the practice.”

While the 1991 statute didn’t explicitly cover retaliation, courts have generally held that Congress also meant to apply the “motivating factor” standard to retaliation claims — an interpretation followed by the trial court in Nassar (which instructed the jury accordingly), and by the Fifth Circuit on appeal. The same view was official policy for more than 20 years at the U.S. Equal Employment Opportunity Commission (EEOC); the Obama Administration supported Dr. Nassar as an amicus curiae in the case.

Despite all of this, the Supreme Court disagreed.

Raising bogeymen such as clogged courts and frivolous claims, Justice Kennedy’s majority opinion held that the stricter “but for” standard must apply unless Congress replaces it with something else — which the Court held lawmakers hadn’t done.

Justice Ginsburg was scornful of this “strange logic,” pointing out inconsistencies with many earlier decisions by the Court. “We need not leave our common sense at the doorstep when we interpret a statute,” she said, quoting an opinion by Justice William Brennan in a  related case.

Yet while her legal analysis was sound — and her defense of employee rights stirring — Justice Ginsburg’s overt despair was premature. The cramped spirit behind Justice Kennedy’s decision may indeed have been, as she put it, “heads the employer wins, tails the employee loses.”

But until the Congress weighs in, the practical effect of Nassar remains to be seen. It will play out in the courts.

Is the bar higher for employees who claim Title VII retaliation? Undoubtedly.

Will employees now lose all such claims? Undoubtedly not.

Recall that even Justice Kennedy refused to rule against Dr. Nassar on the merits. The facts, as ever, will determine the actual outcome of Nassar — and of every retaliation case in its wake.

Plaintiff’s attorneys simply must raise their game.

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