Supreme Court Will Again Address the Question of "Mixed Motive" Versus "But For" Causation in Employment Cases

Just last week, the United States Supreme Court agreed to hear the case of University of Texas Southwestern Medical Center v. Naiel Nassar which presents the following question:

Whether Title VII's retaliation provision and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).

In a 2009 decision (Gross v. FBL Financial Services, Inc.), the Court ruled that the Age Discrimination in Employment Act required but for causation (as opposed to mixed motive) and, since that time, the Federal Courts of Appeals have been divided as to whether that standard of causation should apply to all employment related claims (in other words: disability discrimination claims, retaliation claims, etc.) or whether the ruling should be limited to age claims.

The Seventh Circuit Court of Appeals, the appellate court presiding over our local federal district courts, has repeatedly applied Gross to other types of employment claims, including claims under the Americans With Disabilities Act and First Amendment Retaliation Claims under Section 1983 - making the burden of proof for those claims much more difficult.  However, a number of other Circuit Courts of Appeals have refused to require but for causation in the context of other types of employment claims. 

The Supreme Court is now poised to rule on whether Title VII retaliation claims require but for causation and, presumably, to clarify for all of the Circuits how far the Gross decision should reach.   
This is one to keep an eye on as the Court's decision is sure to cause waves, regardless of which way the ruling falls.  

I can tell you, though, that these employee advocates will be keeping their fingers crossed for a win for motivating factor causation!


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