Supreme Court makes proving retaliation harder for employees

By Sharon Vinick

The United States Supreme Court turned its back on decades of law when it decided on Monday that an employee cannot win a claim for retaliation unless he could prove that the employer’s decision to take action was driven by the employer’s intent to retaliate.  With this move, the Supreme Court made it more difficult for an employee to win a retaliation claim than to win a claim of discrimination or harassment, where an employee need only prove that a discriminatory motive was one of the reasons for the employer’s action.  The Court’s decision also ignores the realities of workplace decision-making, where decisions are rarely driven by single motives and where managers are trained to develop neutral explanations for their employment actions.

This heightened standard for proving a claim for retaliation was announced by the Court in the case of University of Texas Southwestern Medical Center v. NassarDr. Naiel Nassar, who brought the case, is a physician of Middle Eastern descent, who is a specialist in the treatment of HIV/AIDS.  While employed at the University Medical Center, Dr. Nassar complained that Dr. Levine, one of the physicians supervising him, was discriminating against him on account of his religion and national origin.  In an effort to continue his work, but to avoid being subjected to further acts of discrimination, Dr. Nassar sought and was verbally offered a position at an affiliated hospital.    However, a high-level hospital official voiced his opposition to the hiring, making it clear that he was shocked that Dr. Nassar had made allegations against Dr. Levine.  Subsequently, the hospital withdrew its offer to bring Dr. Nassar on board.

Ignoring a long line of cases holding that claims for discrimination and retaliation are often intertwined and that retaliation “is a type of discrimination,” the Supreme Court ruled that employees bringing a claim of retaliation should be held to a higher standard of proof that those bringing claims of discrimination. Thus, the Court held that to win a claim for retaliation, the employee must prove that an “adverse employment action” – in this case, the withdrawal of an offer of employment – was taken because of an intent to discriminate.  Justice Kennedy, author of the majority opinion, defended the Court’s decision by explaining that “claims of retaliation are being made with ever-increasing frequency” and that a higher standard of causation was necessary to eliminate the filing of “frivolous claims.”

In a sharply worded dissent, Justice Ginsburg, who spent her legal career defending civil rights and was a key player in the development of employment discrimination law, criticized the majority for failing to follow precedent, as well as failing to take into account the aims of the legislators who drafted and amended Title VII, the federal law prohibiting discrimination and retaliation.  As Justice Ginsburg correctly noted, the “Court appears to be driven by a zeal to reduce the number of retaliation claims filed against employers.”  While this goal may be lauded by the business community, it simply has no place in Supreme Court precedent, which is undoubtedly the reason that Justice Ginsburg concludes by urging Congress to overturn the Court’s ruling.

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

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