News from the Supreme Court: On January 18, 2013, the Supreme Court agreed to hear University of Texas Southwestern Medical Center v. Nassar, a case which could significantly impact discrimination law. The Court is asked to decide whether the “mixed motive” theory can be still be used by employees to prove EEO reprisal claims in the wake of the Supreme Court’s 2009 Gross decision.
Under the Civil Rights Act of 1991, employees raising Title VII discrimination claims can seek relief under two different legal theories. One theory requires the employee to show that the discriminatory intent was the “but-for” cause of the alleged discrimination action. Under the “but-for” test, the employee must show the personnel act in question would not have happened at all in the absence of discrimination. This is a high burden to meet. The second theory, “mixed motive,” allows an employee to argue that the discriminatory intent was merely one of the motivations behind the alleged discriminatory action; the burden then shifts to the employer to attempt to reduce its liability by showing that it would have taken the same action against the employee anyway even without the discriminatory motive. The “mixed motive” theory was legislatively restored to Title VII in the Civil Rights Act of 1991, reversing then-Supreme Court precedent.
The Nassar jury found that the University of Texas Southwestern Medical Center (“Petitioner”) had constructively discharged Dr. Nassar and retaliated against him. On appeal, the U.S. Court of Appeals for the 5th Circuit, reversed the constructive discharge finding but upheld the jury’s verdict on the Title VII reprisal claim; a request for rehearing by the full court was denied.
The question the Supreme Court will address in Nassar is whether the “mixed motive” claim can be used for Title VII reprisal claims. The Supreme Court in Gross held that the legislative reestablishment of the “mixed motive” theory for Title VII discrimination cases was limited to only Title VII, and did not extend to age discrimination claims under the Age Discrimination in Employment Act. Petitioner argues in Nassar that Gross should extend to all discrimination claims other than those covered by the Title VII discrimination provision modified by the Civil Rights Act of 1991. Petitioner asserts that, because retaliation claims arise under a separate provision of Title VII than the provision for discrimination claims, Gross should control and employees should be required to prove “but-for” causation. The courts of appeals are split on this issue.