Mid-Atlantic Health Law TOPICS

A version of this article was published in The Daily Record on April 14, 2014.

In University of Texas Southwestern Medical Center v. Nasser, the United States Supreme Court recently examined retaliation claims under Title VII of the Civil Rights Act of 1964.

That landmark civil rights law prohibits two types of wrongful employer conduct. The first type is status-based discrimination, that is, discrimination on the basis of a protected characteristic - race, color, religion, sex, or national origin. The second type of prohibited conduct is employer retaliation against an employee for having opposed, complained of, or sought remedies for, discrimination prohibited by Title VII.

As originally enacted, an employer could escape liability under Title VII if it could show that it would have taken the same employment action in the absence of all discriminatory intent. In 1991, Congress amended Title VII to provide that an employee seeking to establish status-based discrimination need only show that race, color, religion, sex, or national origin was a "motivating factor for any employment practice, even though other factors also motivated the practice". Title VII's retaliation provision, however, is contained in a separate section of the law, and that section was not affected by the 1991 amendments.

A. The Facts

In Nasser, a physician, who was a Muslim of Middle Eastern descent and specialized in internal medicine and infectious diseases, was hired to work both as a member of the University of Texas faculty, and as a staff physician at Parkland Memorial Hospital. An affiliation agreement between the University and the Hospital requires the Hospital to offer empty staff positions to the University's faculty members.

In 2004, Dr. Beth Levine was hired as the University's Chief of Infectious Disease Medicine, and she became Dr. Nasser's ultimate supervisor. Dr. Nasser repeatedly complained that Dr. Levine was biased against him on account of his religion and ethnic heritage, and he eventually sought to continue working at the Hospital without also being on the University faculty.

After reaching a preliminary agreement with the Hospital, Dr. Nasser resigned his teaching post in July, 2006, and sent a letter to Dr. Gregory Fitz, the University's Chair of Internal Medicine, as well as a number of other individuals, in which he stated that the reason for his departure was the alleged illegal harassment by Dr. Levine. Dr. Fitz accused Dr. Nasser of publicly humiliating Dr. Levine, and stated that he felt it was very important that Dr. Levine be publicly exonerated. Dr. Fitz also protested to the Hospital, claiming that its offer to allow Dr. Nasser to continue working after he resigned his faculty appointment was inconsistent with the parties' affiliation agreement. The Hospital subsequently withdrew its offer to Dr. Nasser.

Dr. Nasser filed suit alleging both status-based discrimination and retaliation under Title VII. A jury found for Dr. Nasser on both claims and awarded him over $400,000 in backpay and more than $3,000,000 in compensatory damages.

B. The Decision

On appeal, a federal appellate court overturned the jury's verdict on Dr. Nasser's status-based discrimination claim. However, that appellate court affirmed the retaliation finding on a theory that retaliation claims under Title VII, like those of status-based discrimination, require only a showing that retaliation was a motivating factor for the employer's actions.

The United States Supreme Court, however, reversed the lower federal appellate courts decision in regard to the retaliation claim. The Supreme Court found that if Congress had intended to amend the retaliation section of Title VII to lower the standard, as it had done with the status-based discrimination section, it would have done so. Accordingly, the Court held that Title VII retaliation claims require proof that the challenged employment action would not have happened "but for" the employer's desire to retaliate against the employee's complaint of discrimination.

The Court based its decision on the text of the statute, but also found important public policy reasons to support its holding, noting that the number of retaliation claims filed in the past fifteen years has nearly doubled, from just over 16,000 in 1997, to over 31,000 in 2012.

Writing for the 5-4 majority, Justice Kennedy found that a more lenient standard might contribute to the filing of frivolous claims: ?Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then when the unrelated employment action comes, the employee could allege that it is retaliation . . .."

In light of Nasser, it will now be easier for employers to defend against retaliation claims.