Monday, June 24, 2013

Think You Were Retaliated Against? Better Be Sure.

In the world of employment law, retaliation claims are often thought of by many attorneys as the most important or critical aspect of discrimination claims.  Many times, an aggrieved employee can wind up being successful on his/her claims for retaliation even when his/her claims for discrimination or harassment have come up short.  We may see that trend start to change, however. 

Today, in the case of University of Texas Southwestern Medical Center v. Nassar (here), the U.S. Supreme Court held that in order to be successful for a claim for retaliation under Title VII, the employee has to prove that retaliation was the "but for" cause of the adverse employment action.  What does this mean in real life?  Essentially, a plaintiff-employee who claims that his/her employer retaliated against the employee for engaging in protected activity under Title VII, or for filing a charge of discrimination against the employer, must now be able to convince a jury that it was the plaintiff's activities, and not some other reason or issue, which prompted the employer to take the action it did.  Unlike a claim for discrimination, in which an employee can prevail by showing that the employer's adverse action was simply motivated by discriminatory animus or by the employee's protected trait, an employee arguing retaliation will have to persuade a jury that no other factors prompted the employer's decision to fire, demote or otherwise discipline the employee.

In other words, for employees who believe they are or have suffered retaliation by their employers for engaging in protected activity, the hill to climb just got a little bit steeper.