NELA Amicus Brief Supports Broad Causation Standards For Retaliation Claims

By Pedro A. Valverde posted 04-16-2013 12:51 PM


NELA, joined by the Leadership Conference on Civil and Human Rights as well as 18 other organizations committed to furthering the goals of Title VII of the Civil Rights Act of 1964, filed an amicus brief in support of Dr. Naiel Nassar before the U.S. Supreme Court on April 10, 2013 in University of Texas Southwest Medical Center v. Nassar, Case No. 12-484. This important case is a follow-up to the Court’s 2009 decision in Gross v. FBL Financial Services, Inc., which found that age discrimination plaintiffs were not entitled to use the motivating factor standard to prove their claims under the Age Discrimination in Employment Act (ADEA). In this case, the defendant urges the Court to extend the adverse ruling in Gross to Title VII’s antiretaliation provision and “any similarly worded statute.” Such a far-reaching decision could have a devastating impact on the ability of workers to seek redress for violations of their rights.

Dr. Nassar suffered discrimination and harassment at the hands of his supervisor, resulting in his constructive discharge, and was retaliated against when he complained of the illegal treatment directed toward him. A jury returned a verdict in favor of Dr. Nassar, including on the retaliation claim for which the judge had given the jury a motivating factor charge as urged by the defendant. During the remedy phase, the district court instructed the jury on UTSW’s same decision affirmative defense, which the jury rejected in ruling for Dr. Nassar on his claims. The U.S. Court of Appeals for the Fifth Circuit upheld the jury verdict on the retaliation claim but overturned the verdict on the constructive discharge claim.

Our brief argues that the Supreme Court has repeatedly recognized that to enforce Title VII’s substantive protections effectively, Title VII’s antiretaliation provision must be broadly interpreted to ensure unfettered access to statutory remedial mechanisms. We urge the Court to reaffirm that while unlawful retaliation must prompt an employment decision, it need not be the sole cause for the adverse action. It is a workplace reality that adverse employment decisions can have multiple causes, and that Title VII is violated if an illegitimate motive plays a meaningful role in the ultimate decision made. Congress explicitly recognized that employment decisions may involve multiple motives, but a discriminatory “motivating factor” should never be tolerated and must be purged from the employment process. We argue that when the language of Title VII after the 1991 amendments is read in context with the Court’s broad protection of the right to be free from workplace retaliation and the legislative history of the Civil Rights Act of 1991, a fair reading compels the conclusion that the law is violated if an illegitimate motive is a “motivating factor” in an adverse employment decision. We urge the Court to reject defendant’s arguments that different standards should be applied to proving discrimination and retaliation under the same statute (here, Title VII) and argue that using different standards will only create confusion for the parties, the trial courts, and the jury.

Professor Michael L. Foreman and his students in the Pennsylvania State University’s Civil Rights Appellate Clinic led the drafting of NELA’s brief, with support from NELA Program Director Rebecca Hamburg Cappy as well as NELA members Stephen Z. Chertkof and Paul W. Mollica. We thank them all for their invaluable contributions to this brief.