In this case the Supreme Court limited the standard of proof in retaliation cases under Title VII (the nation’s primary anti-discrimination law) to the narrower “but for” causation standard. While this ruling benefits employers and was contrary to the position argued by the AAUP in an amicus brief it is a relatively modest change in the burden of proof in such cases.
Naiel Nassar, M.D. served as an Assistant Professor of Internal Medicine and Associate Medical Director with the University of Texas Southwestern Medical Center (UTSW) Clinic. Dr. Nassar complained that he allegedly was being harassed by a Supervisor, Dr. Levine, and sought transfer to another role that would take him out of her line of supervision. He stepped down from his faculty post when he received a job offer working for Parkland, an affiliated clinic, effective July 10, 2006. On July 3, he submitted a letter of resignation in which he asserted that his "primary reason" for resigning was because of Dr. Levine's harassing and discriminatory behavior. Shortly thereafter, Parkland withdrew its job offer.
Dr. Nassar brought suit in federal court, accusing UTSW of orchestrating Parkland's refusal to hire him in retaliation for his discrimination complaints, in violation of Title VII. The jury found that UTSW constructively discharged and retaliated against Dr. Nassar, and awarded him $3.4 million in back pay and compensatory damages. UTSW appealed to a three-judge panel of the Circuit Court of Appeals for the Fifth Circuit, arguing among other things that Dr. Nassar failed to prove that retaliation was the “but for” cause of Parkland's decision not to hire him. Citing to its 2010 ruling in Smith v. Xerox Corp., 602 F.3d 320 (5th Cir. 2010), which held that the mixed-motive framework is available to Title VII retaliation plaintiffs, the Fifth Circuit court panel, without further analysis, affirmed the district court's judgment regarding liability for retaliation. UTSW appealed to the Supreme Court.
The Supreme Court held that the appropriate standard of proof in retaliation cases was the narrower “but for” causation standard. On June 24, 2013 the Court ruled 5 to 4 to vacate the decision of the Fifth Circuit finding it was appropriate to use “but for” causation, and not mixed motive causation, in Title VII retaliation cases. This ruling benefits employers and was contrary to the position argued by the AAUP in an amicus brief. The American Council on Education (ACE) filed an amicus brief in support of UTSW arguing that AAUP policies supported the higher burden of proof. The AAUP filed an amicus brief in response, arguing that ACE had misinterpreted AAUP policies and that in fact AAUP policies supported the but for standard in retaliation cases. The Court did not reach the issue of whether there a different standard should be applied to faculty members based on AAUP policies. That said, it is a relatively modest change in the burden of proof in such cases. In addition, the Court did not take the invitation from some amicus briefs to find that all similarly worded statutes would be interpreted in the same fashion. Such a ruling would have constituted a major change for legal claims under other statutes, such as the NLRA or the FLSA.