Title VII of the 1964 Civil Rights Act prohibits employment discrimination on the basis of race, color, religion, sex and national origin and also prohibits retaliation against an employee who opposes such discrimination or who participates in Title VII proceedings (generally called “protected activity”).  In University of Texas v. Nassar, the U.S. Supreme Court ruled that a retaliation claimant under Title VII must prove that his employer’s retaliatory motive actually caused the harm he/she claims to have suffered.  While this may seem like a straightforward proposition, the law actually was quite muddled, as many of the lower courts had ruled that a lesser causation standard sufficed and that a claimant need only prove that his/her employer’s retaliatory motive played a part, and not even a determinative part, in the employer’s adverse employment decision.

One of the more vexing problems employers encounter concerns the employee who has made an internal complaint of discrimination or harassment or has filed a discrimination charge with the EEOC or a state or local agency.  Because Title VII protects employees who have engaged in such protected activity, any negative employment action subsequently taken by the employer against the employee comes with substantial litigation risk.  Many employers have had to deal with the problem employee who makes the complaint or files the charge to acquire immunity from the employer’s disciplinary response to misconduct or poor performance.  When these situations end up in court, all too often the court dismisses the underlying discrimination or harassment complaint but allows the retaliation claim to continue.  The Court’s Nassar decision reduces the litigation risk associated with managing employees who have engaged in protected activity.

Nassar had complained internally about his supervisor’s racial and religiously motivated harassment, and he sought and was offered a new position with a contractually affiliated employer.  When his former employer learned of the offer, it informed the prospective employer that Nassar was unqualified for the position under the terms of their contract.  The offer was withdrawn.  Nassar then sued, alleging that his former employer had retaliated against him by informing his prospective employer that, under the terms of their contract, Nassar was not eligible for the job.

The lower courts held that Nassar could prevail merely by showing that a retaliatory motive played a part in the rejection decision, even if the rejection still would have occurred as a result of the contract’s requirements.  Based on evidence that his former supervisors were annoyed by his harassment complaints, the jury found for Nassar and awarded him $3.4 million.  The Supreme Court reversed and held that, in a Title VII retaliation case, the plaintiff must prove “but for” causation; that is, that the adverse employment action would not have occurred in the absence of – but for – the employer’s alleged retaliatory motive.

In explaining the decision, the court described a scenario familiar to countless employers:

“Consider … the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location.  To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation.”

Too often, evidence of a retaliatory motive (e.g., an employee complaint and testimony that a manager was upset about it) was enough to delegitimize a legitimate and warranted personnel action.  After Nassar, a plaintiff will have to do more than taint a legitimate decision with some evidence of retaliatory animus; rather the plaintiff will have to prove that the employer’s decision is not legitimate and that retaliation is the “but for” cause of that decision. 

The practical effect of the Nassar decision will be to significantly reduce the litigation risk involved with legitimate employment decisions that adversely affect an employee who has engaged in protected activity.  The decision will not, however, bail out the careless employer.  Employers must deal prudently, carefully and lawfully with employees who have made complaints of discrimination or harassment.  Any adverse personnel action taken against an employee who has engaged in protected activity should be well-documented, based on objective facts and justified by those facts.  If you can’t prove your legitimate reason for discharge, discipline, demotion, etc., Nassar will not help you.

Obermayer labor and employment law attorneys are available to provide guidance and assistance on these issues.


The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.