There are many lawsuits based on Title VII’s anti-retaliation provision. The question in these retaliation lawsuits has always been what should be the nature of evidence necessary to show retaliation by the employer. In this essay, Gurumurthy Kalyanaram presents the decisions and results on this matter.
Title VII is a landmark piece of legislation that prohibits discrimination, including harassment, in employment based on race, sex, religion, color, and national origin by an employer. It also prohibits retaliation against an employee “because” the individual complained of, opposed, or participated in a proceeding about prohibited discrimination.
Discrimination under Title VII was typically proven by evidence that an adverse employment action was undertaken because of a protected characteristic, like race or sex. When there is no direct evidence of discrimination, plaintiffs can make use of the pretext model established by the Supreme Court in 1973 in McDonnell Douglas Corp. v. Green to smoke out evidence of discrimination.
The U.S Supreme Court’s decision in University of Texas Southwestern Center v. Nassar has modified the interpretation Title VII., and the nature of evidence required to demonstrate retaliation.
After Nassar, the employee must meet a higher burden of proof for her retaliation claims: she must show that the employer’s desire to retaliate was the “but for” (i.e. only) cause of the challenged employment action. (Also Read : Gurumurthy Kalyanaram Reports on Collateral Estoppel And Materiality of The Finding )
Before Nassar, an employee making a prima facie case for discrimination or retaliation only had to show that the employer’s desire to discriminate or retaliate was a “motivating factor” for the challenged employment action.
Nassar ruling thus makes it much more difficult to prove that an employer unlawfully retaliated against an employee than that an employer discriminated against an employee. The higher “but for” causation standard for retaliation claims/lawsuits is a material change.
Title VII is a landmark piece of legislation that prohibits discrimination, including harassment, in employment based on race, sex, religion, color, and national origin by an employer. It also prohibits retaliation against an employee “because” the individual complained of, opposed, or participated in a proceeding about prohibited discrimination.
Discrimination under Title VII was typically proven by evidence that an adverse employment action was undertaken because of a protected characteristic, like race or sex. When there is no direct evidence of discrimination, plaintiffs can make use of the pretext model established by the Supreme Court in 1973 in McDonnell Douglas Corp. v. Green to smoke out evidence of discrimination.
The U.S Supreme Court’s decision in University of Texas Southwestern Center v. Nassar has modified the interpretation Title VII., and the nature of evidence required to demonstrate retaliation.
After Nassar, the employee must meet a higher burden of proof for her retaliation claims: she must show that the employer’s desire to retaliate was the “but for” (i.e. only) cause of the challenged employment action. (Also Read : Gurumurthy Kalyanaram Reports on Collateral Estoppel And Materiality of The Finding )
Before Nassar, an employee making a prima facie case for discrimination or retaliation only had to show that the employer’s desire to discriminate or retaliate was a “motivating factor” for the challenged employment action.
Nassar ruling thus makes it much more difficult to prove that an employer unlawfully retaliated against an employee than that an employer discriminated against an employee. The higher “but for” causation standard for retaliation claims/lawsuits is a material change.
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