Causation, Part 27 (Nassar)

In 2013, the Supreme Court issued its opinion in University of Texas Southwestern Medical Center v. Nassar. That case raised the question of whether Title VII’s retaliation provision required the plaintiff to establish “but for” cause. The Court held that it did. This posts sets up the legal issue decided in Nassar.

Title VII has multiple provisions. One of those provisions, codified at 42 U.S.C. § 2000e-2, provides as follows:

(a) Employer practices

It shall be an unlawful employment practice for an employer–

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; . . .

This provision prohibits an employer from discriminating against an employee because of a protected trait. Later, the statute prohibits retaliation. The anti-retaliation provision is codified at 42 U.S.C. § 2000e-3. It provides as follows:

(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, 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.

Notably, the discrimination provision (§ 2000e-2) uses the word “because” and the retaliation provision (§ 2000e-3) uses that same language.

Since Nassar followed on the heels of Gross, the defendant made the argument that the 1991 amendments to Title VII did not explicitly amend § 2000e-3. Just like with Gross, this argument asked the Court to give a certain meaning to the 1991 amendments. Congress made a choice. For discrimination cases, Congress adopted a motivating factor test and required the defendant to carry some of the causation burden to escape damages. Without any explicit notice that it was doing so, so this argument goes, Congress intended to apply a different causation standard (“but for”) to Title VII retaliation claims and place the entire burden of proof on the plaintiff.

This post sets up the prevailing argument in Nassar. In the next post, I will explain why this history is problematic.

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