University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ____ (2013).


Title VII of the Civil Rights Act of 1964 generally prohibits employment discrimination based on employee’s race, color, religion, sex and national origin. Employees who bring lawsuits claiming employment discrimination because of their status as a member of one of these protected groups [status claims] must show that illegal discrimination was a motivating factor or a reason that they suffered an adverse employment action. This is sometimes referred to as the motivating factor test.

Employees may also bring separate claims under Title VII asserting that they were retaliated against because they filed a charge of discrimination, because they complained  about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit). Traditionally, courts have applied a “but for” test, or required the employee claiming retaliation to prove that “but for” their complaints or other protected actions, they would not have suffered an adverse employment action such as a firing, demotion, failure to be promoted or harassment.  Generally, this but for test is harder to satisfy than the motivating factor test. Therefore, employees who bring lawsuits typically prefer the motivating factor test.

Under Title VII, Congress codified a motivating factor causation standard for status based claims. However, Congress did not codify a causation standard for retaliation claims.  The Supreme Court, in University of Texas Southwestern Medical Center v. Nassar, had to decide whether both types of claims, retaliation claims and status based claims, should have the same causation standard. A divided Supreme Court concluded that, despite being part of the same statute, retaliation claims must still be proven “according to traditional principles of but-for causation, not the lessened [motivating factor test].”  This decision is welcome news for employers, as retaliation claims are among the most frequently asserted in the employment context both nationally and in New Jersey today.