How U.S. Supreme Court Ruling On Title VII Retaliation Standard Case May Affect Claims Under Whistleblower & Other Anti-Retaliation Statutes

"But-for" or "mixed motive" is a causation question not unknown to the U.S. Supreme Court. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a plurality held that the anti-discrimination provision of Title VII only requires a plaintiff to prove that discrimination was a "motivating factor" for an adverse employment action. But 20 years later, in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court held that the ADEA requires more demanding proof that age was the "but-for" cause of an adverse employment action, such that a defendant is not liable if it can prove that it would have taken the same action for other, nondiscriminatory reasons. Circuit courts have since split on whether Gross or Price Waterhouse establishes the general rule for other federal statutes that do not explicitly provide for mixed-motive claims. In recently granting review in University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (U.S.), the Supreme Court has decided to entertain yet another variation of a familiar question: whether the more lenient "mixed-motive" standard applies to Title VII retaliation claims or whether the more stringent "but for" standard applies. The resolution of that question will be significant not only for Title VII retaliation claims, but potentially for whistleblower retaliation claims arising under other similarly worded statutes, such as the False Claims Act (FCA).

For example, if the Supreme Court finds that a "mixed-motive" causation standard is permissible under Title VII's retaliation provision, more claims and potential liability for employers are likely to follow. In fact, a recent empirical study found that under the more lenient "mixed-motive" standard, plaintiffs recover significantly more often than under the more conventional "but-for" causation standard. See David Sherwyn & Michael Heise, The Gross Beast of Burden of Proof: Experimental Evidence Employment Discrimination Case Outcomes, 42 ARIZ. ST. L.J. 901, 944 (2010). Although the Civil Rights Act of 1991 partially abrogated Price Waterhouse, even if a defendant proves as an affirmative defense to a Title VII discrimination claim that it "would have taken the same action in the absence of the impermissible motivating factor," the court may still award equitable relief (including equitable monetary relief such as front pay) and...