On Wednesday, the Supreme Court is scheduled to hear arguments in University of Texas Southwestern Medical Center v. Nassar, No. 12-484, a case that could result in significant limitations on the ability of employees to prove retaliation under federal discrimination law. The case turns on the interpretation of amendments to Title VII of the Civil Rights of 1964 enacted in 1991 that established the ability of employees to prove discrimination even if the employer had a "mixed-motive" in its adverse action. Under this framework, once an employee proves that discrimination was a motivating factor in an adverse employment action, the burden shifts to the employer to show that it would have taken the same action even without the unlawful factor (i.e. that the unlawful factor was not the "but-for" cause of its decision). If the employer meets that burden, the employee can still receive a judgment if he or she shows that the discrimination was one of the motivating factors of the adverse decision. This is called a mixed-motives case. In 1989, the Supreme Court had decided that a mixed-motives case was available under Title VII. The 1991 amendments codified this decision, but limited the available recovery for employees in such cases to his or her attorneys' fees.
In 2008, the Supreme Court decided that a mixed-motives case is not available under the Age Discrimination in Employment Act in Gross v. FBL Financial Services Inc, and that the burden of proof never shifts to the employer. This means that the employee must prove that the employer's discrimination was the "but-for" cause of the adverse action. The University of Texas Southwestern Medical Centers asserts that the Gross decision also applies to a retaliation claim under Title VII, because the 1991 amendments did not expressly refer to retaliation claims. The employee, Naiel Nassert, argues that even if this argument is true, the result would be to apply Title VII as it existed under the Supreme Court's 1989 decision, when the law did not allow an employee to win a judgment in a mixed-motives case but it still shifted the burden to the employer (once the employee established discrimination as a motivating factor) to prove that it would have been the same decision even without its discrimination.