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.
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