Supreme Court Decision Alert - June 24, 2013

Keywords: Civil Rights Act of 1964, Title VII, employer retaliation, workplace harassment, generic drugs, products liability,

Today the Supreme Court issued three decisions, described below, of interest to the business community.

Title VII—Retaliation—Mixed-Motive Claims Title VII—Workplace Harassment—Employer's Vicarious Liability for Acts of Supervisor Federal Food, Drug, and Cosmetic Act—Generic Drugs—Preemption—Products Liability Title VII—Retaliation—Mixed-Motive Claims

University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (previously discussed in the January 22, 2013, Docket Report)

Today, in a 5-4 decision authored by Justice Kennedy, the Supreme Court in University of Texas Southwestern Medical Center v. Nassar, No. 12-484, resolved a circuit split over the causation standard applicable to retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Construing Title VII's prohibition against employer retaliation, the Supreme Court held that an employee alleging retaliation must prove that "his or her protected activity was a but-for cause of the alleged adverse action by the employer." Slip Op. at 23. The Supreme Court declined to apply the "motivating factor" test that was announced in Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989), and subsequently codified in modified form as part of the Civil Rights Act of 1991. The majority held that Congress intended that this more lenient causation standard, which provides that an employee alleging discrimination satisfies his initial burden of proof by showing that the discrimination was "a motivating factor" in an adverse employment decision, would apply to claims of status-based discrimination only, not to retaliation claims.

Justice Kennedy was joined in the majority opinion by Chief Justice Roberts and Justices Scalia, Thomas, and Alito. Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan.

Respondent Nassar, a medical doctor of Middle Eastern descent, sued his former employer, the University of Texas Southwestern Medical Center, alleging that the university prevented him from obtaining a staff position at its affiliated hospital in retaliation for a discrimination complaint that he had made against his supervisor at the university. The university responded that it had decided to deny Nassar the position at the clinic even before Nassar complained of discrimination. The district court instructed the jury that Nassar could satisfy his burden of proof by establishing that a retaliatory impulse was one motivating factor in the university's decision to fire him, and the jury returned a verdict in Nassar's favor. The Fifth Circuit affirmed.

The Supreme Court reversed the Fifth Circuit's decision. The majority began by observing that "textbook tort law" requires a plaintiff to "show 'that the harm would not have occurred' in the absence of" the defendant's conduct. The Court explained that Congress, in enacting Title VII, is "presumed to have incorporated" this general principle of tort law absent an indication to the contrary in the statute itself. Following Price Waterhouse, the Court observed, Congress did amend Title VII's antidiscrimination provision to adopt that decision's "lessened-causation framework." Because Congress did not also amend Title VII's retaliation provision, the Court in Nassar concluded that it did not intend to "make the motivating factor standard applicable to all Title VII claims."

The Court rejected the argument that the 1991 amendment to Title VII's discrimination provision was intended to encompass retaliation claims. Although the amendment's text...