• July 24, 2014

In Case Involving Medical School, Court Sets Higher Bar for Workers Who Allege Retaliation

A sharply divided U.S. Supreme Court on Monday raised the bar for what workers must prove in retaliation cases against their employers.

Splitting 5-to-4 in the case, University of Texas Southwestern Medical Center v. Nassar (No. 12-484), the court ruled against a former assistant professor and physician at the University of Texas Southwestern Medical Center who sued it in 2008, alleging that it had retaliated against him because he had complained of discrimination.

The physician, Naiel Nassar, who is Muslim and of Middle Eastern ancestry, contended that a medical-school official's retaliation had kept him from getting a new job at a hospital affiliated with the university. A trial-court jury had ruled in Dr. Nassar's favor and awarded him more than $3-million in damages—a verdict that was later upheld by the U.S. Court of Appeals for the Fifth Circuit.

But in the opinion handed down on Monday, a majority of the Supreme Court justices held that plaintiffs like Dr. Nassar can't just show that retaliation was a motivating factor for an employer's action against them, as the Fifth Circuit court had allowed. Instead, wrote Justice Anthony M. Kennedy for the majority, retaliation claims filed under Title VII of the Civil Rights Act of 1964 require "proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer."

The ruling isn't a total victory for the medical center. The justices sent the case back to the Fifth Circuit court to apply the more exacting standard, known as "but for" causation, to Dr. Nassar's retaliation claim. (The but-for standard takes its name from the idea that the plaintiff would not have experienced the harm alleged in the case but for an illegal action.)

"Courts closer to the facts of this case" are better suited to resolve it, Justice Kennedy wrote. He was joined in the majority opinion by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr.

In a sharply worded dissent, Justice Ruth Bader Ginsburg called on Congress to overturn the court's ruling. She harshly criticized the majority opinion, saying that the court appeared to be "driven by a zeal to reduce the number of retaliation claims filed against employers." Indeed, Justice Kennedy noted that claims of retaliation "are being made with ever-increasing frequency."

Justices Stephen G. Breyer, Sonia M. Sotomayor, and Elena Kagan joined in the dissent.

Divided Views in Academe

Dr. Nassar was hired as an assistant professor at the medical school in 2001. He asserted in his lawsuit that his religion and ethnicity became an issue three years later, when a new chief of infectious diseases arrived and began to harass him. He quit his teaching job to escape the harassment, the lawsuit contended, and sought a new job as a staff physician at Parkland Hospital, where he would no longer serve on the medical school's faculty.

Dr. Nassar wrote a resignation letter accusing his supervisor of discrimination, then later found that his job offer at the hospital had been revoked. His lawsuit accused a medical-school administrator of persuading hospital officials to rescind the offer in retaliation.

When the case was argued before the Supreme Court, higher-education groups disagreed over how to balance the freedom of colleges to make academic decisions with the need to protect professors who file job-discrimination complaints.

The American Association of University Professors and the American Council on Education both filed amicus briefs in the case, but on opposite sides.

The AAUP argued in support of Dr. Nassar and the lower "mixed motives" standard of causation, meaning the medical school could be held liable for retaliation even if other factors had played a role in the job denial. The faculty association rejected the argument that academic freedom requires the use of the "but for" standard.

The ACE, however, argued in support of the medical school and the "but for" standard. Its brief, which was also signed by a half dozen other groups, argued that the mixed-motives standard was hard to disprove in court. Such a standard, it said, would infringe on the freedom colleges have to decide who may teach and would force judges and juries to second-guess academic decisions.

"We are gratified to see that the court carefully reviewed the arguments and found that an employee ... must meet the higher standard of causation in order to prove retaliation," said Ada Meloy, general counsel for the council.

AAUP officials could not be reached for comment on Monday.

The NAACP Legal Defense and Educational Fund, in a written statement, said that it was "disappointed" in the court's decision to make it harder to prevail in retaliation claims.

"Strong safeguards against retaliation are critical to shield employees who protest discriminatory actions," the group said. "Employers and supervisors should not have a free pass to target employees who courageously take a stand for fairness in the workplace."

Related Harassment Case

Dr. Nassar's case was one of two discrimination cases decided on Monday in which the court narrowed the ability of workers to sue their employers for workplace discrimination. In the other case, Vance v. Ball State University (No. 11-556), the justices also split 5-to-4 in ruling against a black catering assistant who said she had been harassed because of her race by a co-worker whom she considered her supervisor. The co-worker held some authority over her work assignments. But the majority opinion held that a person has to be able to hire and fire someone to be considered a supervisor in discrimination lawsuits. (See a related article.)

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