570 U.S. 338 (2013), 12-484, University of Texas Southwestern Medical Center v. Nassar

Docket Nº:12-484
Citation:570 U.S. 338, 133 S.Ct. 2517, 186 L.Ed.2d 503, 81 U.S.L.W. 4514, 24 Fla.L.Weekly Fed. S 366
Opinion Judge:KENNEDY, Justice
Attorney:Daryl L. Joseffer, Washington, DC, for Petitioner. Brian P. Lauten, Dallas, TX, for Respondent. Melissa Arbus Sherry, for the United States as amicus curiae, by special leave of the Court, supporting the respondent. Greg Abbott, Attorney General of Texas, Daniel T. Hodge, First Assistant Attorney...
Judge Panel:KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined. Justice GINSBURG, with whom Justice BREYER, Justice SOTOMAYOR, and Justice KAGAN join,...
Case Date:June 24, 2013
Court:United States Supreme Court

Page __

___ U.S. ___ (2013)

133 S.Ct. 2517




No. 12-484.

United States Supreme Court

June 24, 2013

Argued April 24, 2013


[133 S.Ct. 2519] Syllabus [*]

Petitioner, a university medical center (University) that is part of the University of Texas system, specializes in medical education. It has an affiliation agreement with Parkland Memorial Hospital (Hospital), which requires the Hospital to offer [133 S.Ct. 2520] vacant staff physician posts to University faculty members. Respondent, a physician of Middle Eastern descent who was both a University faculty member and a Hospital staff physician, claimed that Dr. Levine, one of his supervisors at the University, was biased against him on account of his religion and ethnic heritage. He complained to Dr. Fitz, Levine's supervisor. But after he arranged to continue working at the Hospital without also being on the University's faculty, he resigned his teaching post and sent a letter to Fitz and others, stating that he was leaving because of Levine's harassment. Fitz, upset at Levine's public humiliation and wanting public exoneration for her, objected to the Hospital's job offer, which was then withdrawn. Respondent filed suit, alleging two discrete Title VII violations. First, he alleged that Levine's racially and religiously motivated harassment had resulted in his constructive discharge from the University, in violation of 42 U.S.C. §2000e—2(a), which prohibits an employer from discriminating against an employee "because of such individual's race, color, religion, sex, and national origin" (referred to here as status-based discrimination). Second, he claimed that Fitz's efforts to prevent the Hospital from hiring him were in retaliation for complaining about Levine's harassment, in violation of §2000e—3(a), which prohibits employer retaliation "because [an employee] has opposed ... an unlawful employment practice . . . or . . . made a [Title VII] charge." The jury found for respondent on both claims. The Fifth Circuit vacated as to the constructive-discharge claim, but affirmed as to the retaliation finding on the theory that retaliation claims brought under §2000e—3(a)—like §2000e—2(a) status-based claims—require only a showing that retaliation was a motivating factor for the adverse employment action, not its but-for cause, see §2000e—2(m). And it found that the evidence supported a finding that Fitz was motivated, at least in part, to retaliate against respondent for his complaints about Levine.


Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e-2(m). Pp. 2522 - 2534.

(a) In defining the proper causation standard for Title VII retaliation claims, it is presumed that Congress incorporated tort law's causation in fact standard—i.e., proof that the defendant's conduct did in fact cause the plaintiffs injury—absent an indication to the contrary in the statute itself. See Meyer v. Holley, 537 U.S. 280, 285, 123 S.Ct. 824, 154 L.Ed.2d 753. An employee alleging status-based discrimination under §2000e—2 need not show "but-for" causation. It suffices instead to show that the motive to discriminate was one of the employer's motives, even if the employer also had other, lawful motives for the decision. This principle is the result of Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268, and the ensuing Civil Rights Act of 1991 (1991 Act), which substituted a new burden-shifting framework for the one endorsed by Price Waterhouse. As relevant here, that Act added a new subsection to §2000e—2, providing that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice, " §2000e—2(m).

Also relevant here is this Court's decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119, which interprets the Age Discrimination in Employment Act of 1967 (ADEA) phrase "because of . . . age, " 29 U.S.C. §623(a)(l). Gross holds two insights that inform the analysis of this case. [133 S.Ct. 2521]The first is textual and concerns the proper interpretation of the term "because" as it relates to the principles of causation underlying both §623(a) and §2000e—3(a). The second is the significance of Congress' structural choices in both Title VII itself and the 1991 Act. Pp. 2524 - 2528.

(b) Title VII's antiretaliation provision appears in a different section from its status-based discrimination ban. And, like §623(a)(l), the ADEA provision in Gross, §2000e—3(a) makes it unlawful for an employer to take adverse employment action against an employee "because" of certain criteria. Given the lack of any meaningful textual difference between §2000e—3(a) and §623(a)(l), the proper conclusion is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action. Respondent and the United States maintain that §2000e—2(m)'s motivating-factor test applies, but that reading is flawed. First, it is inconsistent with the provision's plain language, which addresses only race, color, religion, sex, and national origin discrimination and says nothing about retaliation. Second, their reading is inconsistent with the statute's design and structure. Congress inserted the motivating-factor provision as a subsection within §2000e—2, which deals only with status-based discrimination. The conclusion that Congress acted deliberately in omitting retaliation claims from §2000—2(m) is reinforced by the fact that another part of the 1991 Act, §109, expressly refers to all unlawful employment actions. See EEOC v. Arabian American Oil Co., 499 U.S. 244, 256, 111 S.Ct. 1227, 113 L.Ed.2d 274. Third, the cases they rely on, which state the general proposition that Congress' enactment of a broadly phrased antidiscrimination statute may signal a concomitant intent to ban retaliation against individuals who oppose that discrimination, see, e.g., CBOCS West, Inc. v. Humphries, 553 U.S. 442, 452-453, 128 S.Ct. 1951, 170 L.Ed.2d 864; Gomez-Perez v. Potter, 553 U.S. 474, 128 S.Ct. 1931, 170 L.Ed.2d 887, do not support the quite different rule that every reference to race, color, creed, sex, or nationality in an antidiscrimination statute is to be treated as a synonym for "retaliation, " especially in a precise, complex, and exhaustive statute like Title VII. The Americans with Disabilities Act of 1990, which contains seven paragraphs of detailed description of the practices constituting prohibited discrimination, as well as an express antiretaliation provision, and which was passed only a year before §2000e—2(m)'s enactment, shows that when Congress elected to address retaliation as part of a detailed statutory scheme, it did so clearly. Pp. 2528-2531.

(c) The proper interpretation and implementation of §2000e—3(a) and its causation standard are of central importance to the fair and responsible allocation of resources in the judicial and litigation systems, particularly since retaliation claims are being made with ever-increasing frequency. Lessening the causation standard could also contribute to the filing of frivolous claims, siphoning resources from efforts by employers, agencies, and courts to combat workplace harassment. Pp. 2521 -2533.

(d) Respondent and the Government argue that their view would be consistent with longstanding agency views contained in an Equal Employment Opportunity Commission guidance manual, but the manual's explanations for its views lack the persuasive force that is a necessary precondition to deference under Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124. Respondent's final argument—that if §2000e-2(m) does not [133 S.Ct. 2522] control, then the Price Waterhouse standard should—is foreclosed by the 1991 Act's amendments to Title VII, which displaced the Price Waterhouse framework. Pp. 2532 - 2534.

674 F.3d 448, vacated and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

Daryl L. Joseffer, Washington, DC, for Petitioner.

Brian P. Lauten, Dallas, TX, for Respondent.

Melissa Arbus Sherry, for the United States as amicus curiae, by special leave of the Court, supporting the respondent.

Greg Abbott, Attorney General of Texas, Daniel T. Hodge, First Assistant Attorney General, David C. Mattax, Deputy Attorney General for Defense Litigation James "Beau" Eccles, Division Chief—General Litigation, Office of the Attorney General, Daryl L. Joseffer, Counsel of Record, Carolyn M. Sweeney, King & Spalding LLP, Washington, DC, Michael W. Johnston, Merritt E. McAlister, King & Spalding LLP, Atlanta, GA, Lars Hagen, Assistant Attorney General, Office of the Attorney General, Austin, TX, Myrna Salinas Kallmann, King & Spalding LLP, Austin, TX, for Petitioner.

Michael T. Kirkpatrick, Allison M. Zieve, Public Citizen Litigation Group, Washington, DC, Charla Aldous, Brent Walker, Aldous Law Firm, Dallas, TX, Brian P. Lauten, Counsel of Record, Sawicki & Lauten, LLP, Dallas, TX, for Respondent.



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