U.S. Supreme Court Rejects the Mixed-Motive Analysis in Retaliation Claims

The U.S. Supreme Court held on Monday that a plaintiff alleging retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”) must prove that retaliation was the “but-for” reason for an adverse employment decision. The mixed-motive analysis, whereby a plaintiff need only show that the illegal reason played a part in the decision, now no longer applies to retaliation cases.

In University of Texas Southwestern Medical Center v. Nassar, plaintiff, a university faculty member and hospital staff physician, alleged that he was harassed by another faculty member because of his race and religion. Plaintiff claimed that the faculty member’s supervisor blocked his attempts to retain his hospital position, without remaining on the university faculty, in retaliation for plaintiff’s complaints of harassment.

At trial, the jury ruled in favor of plaintiff on his retaliation claim. On appeal, the U.S. Court of Appeals for the Fifth Circuit held that, to prevail on his retaliation claim, plaintiff need only show that retaliation was a “motivating factor” (i.e., that it played a part)  in the challenged adverse employment action. Because there was sufficient evidence upon which the jury could find that retaliation was a motivating factor, the Fifth Circuit affirmed the jury’s verdict on the retaliation claim.

In a 5-4 decision, the U.S. Supreme Court reversed the Fifth Circuit, holding that, to prevail on a retaliation claim, a plaintiff must show that the adverse employment action would not have occurred “but-for” the protected activity (e.g., plaintiff’s complaints that he was harassed). In so ruling, the Court found that the plain language of § 2000e-2(m) shows that Congress intended to limit the mixed-motive analysis to only status-based discrimination claims involving race, color, religion, sex and national origin.

This decision clarifies that the burden of proof in a retaliation case, like that in an age discrimination claim, is a heavy one that must be borne only by the plaintiff. Practically, because a plaintiff will ultimately have to prove that retaliation was the “but-for” reason for the adverse action, the decision makes it likely that fewer cases will survive summary judgment.