The first case clarified who a “supervisor” is under Title VII, and we blogged on that case here.
This post discusses the Court’s second decision. It held that, to recover for employment discrimination retaliation, an employee must establish retaliation as the sole cause of the adverse employment action taken against the employee. University of Texas Southwestern Medical Center v. Nassar teaches that an employee must establish that an employer’s desire to retaliate against the employee was the only factor contributing to an adverse employment decision.
Consider the following hypothetical example: Emily is a Hispanic employee who regularly arrives late to work, makes repeated errors at work, and knows her job is in jeopardy. While still employed, Emily complains that she failed to get a promotion because of her race. Weeks later, after Emily has lost her job because of tardiness and poor work, she claims her discharge was retaliatory because her promotion complaint upset her boss.
Previously, Emily could prevail on her retaliation claim by proving that her employer’s desire to retaliate was a motivating factor in the firing decision. Under Nassar, however, Emily must now prove that revenge was the only reason for her discharge. If her employer proves just one other reason (such as tardiness) for the discharge decision, Emily’s retaliation claim fails.
This significantly heightened burden of proof should reduce the number of retaliation claims that get filed and/or proceed to trial. Moving forward, to use Nassar to full advantage, document all reasons underlying employment decisions (such as hiring, firing, salary changes, and promotions) to best establish alternative reasons for their actions and defeat any claims of retaliation.
To temper employer euphoria, however, expect “leaner,” not fewer, employment discrimination complaints, with less or no emphasis on retaliation.