University of Texas Southwestern Medical Center v. Nassar: A Significant Threat to Employees
by: Abigail Castleberry
The Supreme Court’s decisions on DOMA and the Voting Rights Act caused a media circus this year. Though garnering little attention from the media, University of Texas Southwestern Medical Center v. Nassar is one of the Court’s most significant employment decisions in years. The decision fundamentally effects how employees who experience retaliation seek redress.
Naiel Nassar, Respondent, is a physician of Middle Eastern descent who worked for Petitioner as both a faculty member and staff physician. The Respondent claimed his supervisor, Dr. Beth Levine, showed bias against him due to his ethnic heritage. Constant criticism from Levine caused Nassar great distress. Nassar, in order to remove himself from Levine’s supervision, made an agreement with the Petitioner that allowed him to continue working for the hospital without being member of the faculty.  Upon resigning his faculty position, Nassar wrote a letter detailing the reasons for his resignation and naming Levine’s discriminatory actions as the primary force behind the move. Dr. Fitz, Levine’s supervisor, outraged by the letter, wanted Levine exonerated and placed pressure on the Petitioner to withdraw Nassar’s job offer, which it later was. Nassar then filed two claims under Title VII. First, he alleged that the Petitioner discriminated against him based on race, religion, and national origin, therefore violating 42 U.S.C.§ 2000e -2(a). He also claimed that Fitz’s efforts to prevent him from securing his position was a violation of 42 U.S.C. §2000e -3(a) as it constituted impermissible retaliation. The trial court found for Nassar on all counts and granted large compensatory damages and back pay.
The confusion surrounding the case arises from the mixed-motive proof structure that is available for employment discrimination claims. In Price Waterhouse v. Hopkins, six Justices agreed that a plaintiff could prove status based discrimination if he or she could show that one of the prohibited traits was a motivating factor in the employer’s decision, not merely the sole decision. This lessened the burden of causation applied to employment discrimination claims. In the Civil Rights Act of 1991, Congress codified this lesser burden in a new statute, 42 U.S.C. § 2000e-2(m). The issue before the Court was what standard of causation should be applied to a claim of retaliation and whether the new statute applied to retaliation claims. The majority found that the Congress’s revisions were only applicable to status based discrimination and inapplicable to claims of retaliation. To support their argument, the majority points to the fact that Congress, in drafting 2000-2(m), only included within the statute status based violations of race, color, religion, sex, and national origin. The court concluded that if Congress wanted the burden of causation to be lessened on retaliation claims, it would have clearly stated so in the statute. Furthermore, in deciding that retaliation claims should fall under but-for causation, the Court relied heavily upon on tort law as well as the reasoning of Gross v. DBL Financial Services, Inc.  Gross analyzed the meaning of the Age Discrimination in Employment Act (ADEA). The language used within the ADEA is similar to that used within Title VII, especially in its use of the phrase “because of.” The Court, in Gross, interpreted “because of” to be indicative of but-for causation.  The Court found that Gross’s interpretation of the phrase to be the definitive answer to their inquiry. Therefore, for a plaintiff to succeed on a claim of retaliation, he or she must prove that retaliation was the sole motivating factor in an employment decision.
The Court’s decision suffers from a number of flaws. First, it clearly rejects the precedent set out in Price Waterhouse and leans too heavily upon the Gross. In Price Waterhouse, the Court made it clear that any form of discrimination, either retaliation or status based, could utilize the “motivating factor” causation to prove a claim. It appears the court rejected their findings in Price Waterhouse in favor of Gross, but this decision makes little sense. In Gross, the Court stated very clearly that their decision was only applicable to the ADEA. In fact, the Court explained that the statutes were “materially different.” Apparently, the Court rejected stare decisis in choosing to find an ADEA decision controlling in a Title VII claim, in opposition to Title VII precedents.
Furthermore, the Court gave little concern to Congress’s intentions behind the 1991 revisions. The Court, in supporting its decision, concluded that if Congress intended to extend “mixed motive” causation to retaliation claims, it would have specifically done so. This interpretation of Congress’s intentions makes little sense. In 1991, Congress accepted a majority of the reasoning in Price Waterhouse and incorporated it into the code. Congress only rejected the Court’s allowance of an employer to be fully exonerated. Congress found this too employer friendly and allowed plaintiffs the ability to recoup attorney’s fees even if the employer was exonerated. The Court apparently finds the Congress’s adjustment to the Price Waterhouse decision to be a rejection of the Court’s original finding and therefore chose to interpret the statute in the narrowest possible sense. This runs contrary to the original intent of Congress in that it wished provide more protection for employees. The Court’s new interpretation creates a more employer-friendly statute, clearly snubbing Congressional intent.
More importantly, the Court ignores the realities of employer discrimination. The majority commented that the number retaliation claims made to the EEOC has risen significantly and outpace all other claims of discrimination. According the majority’s opinion, many of these claims are likely frivolous rather than the symptom of actual wrongs committed against employees. As Justice Ginsburg states, “[R]etaliation is inextricably bound up with status-based discrimination. Rarely are employers’ actions motivated by a single intention. The statute “does not protect merely the . . . [minority] worker who is perfect . . . such a worker needs no protection except from irrational employers, and they are rare. It protects . . . the imperfect . . . worker from being treated worse than the [majority] one.” With the Court’s decision in Nassar, this protection is threatened.
 133 S. Ct. 2517 (2013).
 Id.at 2523.
 Id. at 2524.
 Id.; 42 U.S.C. § 2000e-2(a)(2006).
 42 U.S.C. 2000e-3(a)(2006).
 133 S. Ct. at 2524.
 490 U.S. 228, 228 (1988).
 105 Stat. 1071 (1991); 42 U.S.C. § 2000e-2(m)(2006).
 133 S. Ct. at 2532-33.
 557 U.S. 167 (2011).
 29 U.S.C § 623 (2006); 42 U.S.C. § 2000e-2(a).
 557 U.S. at 180.
 133 S. Ct. at 2521.
 Id. at 2534.
 557 U.S. at 173-74.
 133 S. Ct. 2532.
 42 U.S.C § 2000e-2(m)(2006).
 133 S. Ct. at 2531.
 Id. at 2532.
 Id. at 2547.
 913 F.2d 398, 403 (7th Cir. 1990).