Lawyers can argue the fine points of law such that it sometimes looks like they are dancing on the head of a pin. That is what happened in the last week of this year’s Supreme Court term when the Court ruled in a 5-4 decision that a plaintiff claiming that he was retaliated against by his employer after he complained about discrimination had to show that “but for” the intention to retaliate, his offer of employment would not have been withdrawn.

The decision is a case study in how employment discrimination cases have engendered so much passion, as well as misinformation, among the media and in the political world. While favorable to employers in a narrow sense, the ruling does not foretell the end of retaliation claims or provide carte blanche to employers who want to terminate complaining employees. Retaliation cases, which have been on the rise in the last few years, will continue to present issues for employers.

The case arose in a hospital affiliated with a medical school. Briefly, the plaintiff Dr. Nassar, of Middle Eastern descent, was both a teaching and practicing physician for the University of Texas and Parklane Medical Center in Dallas. He claimed that his supervisor, a Dr. Levine, was biased against him because of his religion and ethnic heritage. He lodged a complaint with Dr. Levine’s supervisor, a Dr. Fitz. Ultimately, Parklane agreed to hire Dr. Nasser to work under a different supervisor, allowing him to resign his teaching post. Thereafter, in his resignation letter sent to several colleagues, he stated he was leaving his teaching position because of Dr. Levine’s harassment.  This upset Dr. Fitz, who persuaded Parklane to withdraw their job offer to Dr. Nasser.   

Dr. Nassar filed suit against the University alleging that Levine’s race and religious discrimination resulted in his constructive discharge from the University. Secondly, he claimed that Fitz retaliated against him by preventing the Hospital from hiring him after he complained about Levine’s harassment. Parklane claimed that it withdrew its offer of employment on the basis that all of its practicing physicians also had to be teaching physicians affiliated with the University under an Affiliation Agreement – such that Dr. Nasser’s retention was unrelated to his complaints. The Dallas jury found for Nassar on both claims. The case was appealed to the Fifth Circuit, where the court vacated the judgment as to the constructive-discharge claim, but affirmed the retaliation finding. The Fifth Circuit held the Dr. Nasser only had to show that retaliation was a motivating factor for the adverse employment action, rather than its “but-for” cause. The court further held that the evidence supported a finding that Dr. Fitz was motivated, at least in part, to retaliate against Nassar for his complaints against Levine.

On Appeal, the Supreme Court reversed the Fifth Circuit, holding that the anti-retaliation statute makes it unlawful for an employer to take adverse employment action against an employee “because” of certain criteria; thus a plaintiff must prove that the desire to retaliate was the “but-for” cause of the challenged employment action. The case was remanded back to the district court for re-trial. The dissent, consisting of four justices, strongly disagreed, noting that in 1991 Congress had amended the statute to provide that in discrimination cases, a plaintiff need only show that discrimination figured into the decision in any part, no matter how small, to win his case. As it had done in previous cases, the dissent suggested that Congress might consider amending the law to set in place the lower burden of proof.  

While drawing criticism from many portions of the media and academia, the decision’s implications for the real world are probably minor. Judges and lawyers go to great length and complexity to tell jurors just what the law compels them to do. Yet experience suggests that most jurors decide cases on the simpler basis of what seems fair to them. Whether an employment decision would have been made absent a desire to retaliate, or was in any way influenced by such a desire, will probably pale in significance to a lay juror’s sense of whether the plaintiff was treated fairly or not. Despite the seemingly harder standard to prove retaliation, studies have shown that jurors identify more with the human desire to strike back when attacked or criticized. Not every juror can identify with a person of a particular race, ethnicity, disability, age or religion, but most can understand reflexive anger.  

Risks in retaliation cases can be prevented or at least minimized. First, employers should always take discrimination complaints seriously by conducting a prompt and thorough investigation and documenting and notifying the complaining employee of the results. Second, managers should be trained to treat employees who complain about discrimination the same way they treat any other employees. Negative references about the complaining employee in emails and other documents should be strongly discouraged. Finally, if there is going to be adverse action taken against such an employee, be sure that it is thoroughly investigated and reviewed by Human Resources personnel and/or counsel for an objective viewpoint on whether the adverse action is merited.

 

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