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August 6, 2013

SCOTUS Makes Discrimination Retaliation Claims More Difficult with “But For” Causation Test

by contributor
employment discrimination
Learn more about University of Texas Southwestern Medical Center v. Nassar.

employment discriminationOn June 24, 2013, the United States Supreme Court issued a landmark decision changing the legal standard of proof for discrimination retaliation claims. In University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), the majority decision concluded that Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test for “motivating factor” set forth for status-based discrimination claims.  The antiretaliation provision states, in relevant part:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees… because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

Going forward, for purposes of a discrimination retaliation claim alleging termination or constructive discharge in response to complaints of discriminatory conduct, the plaintiff must prove that such conduct was the “but for” cause of the termination or constructive discharge.  The prior motivating factor test has been rejected for Title VII retaliation claims and will likely make it more difficult for employees to establish retaliation claims.

This change in the causation standard for federal law may also affect Washington state law based discrimination charges. Washington has adopted a statutory regime that provides broader protection than the protected classes for discrimination under federal law. The Washington Law Against Discrimination, RCW 49.60.180(1), prohibits refusing to hire someone based on “age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability…. unless based upon a bona fide occupational qualification.” In construing the state law against discrimination, Washington courts have sometimes looked for guidance from cases interpreting equivalent federal law under Title VII. Marquis v. City of Spokane, 130 Wn. 2d 97, 109, 922 P.2d 43, 50 (1996). However, where the express language of the Washington statute differs from that of Title VII, the Washington courts take that distinction into effect and may interpret Washington law differently than federal law. Id. In practice, it is not always clear whether the Washington courts will follow federal case law, such as Nassar, because the language of the statute is different in many respects.

Because the Nassar decision was based on a statutory interpretation of how Title VII’s federal discrimination and retaliation provisions are written, it is possible the outcome in Washington may be different under an interpretation of the Washington Law Against Discrimination. In any case, there is little doubt the issue will be percolating through the Washington courts as the impact of Nassar begins to have effect in ongoing pending cases.

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