Good News For Employers Fighting Retaliation Claims!
Posted August 19, 2013

California employees may now find it more difficult to prove retaliatory termination following the federal decision in University of Texas South Medical Center v. Nassar. In Nassar, the United States Supreme Court held that retaliation claims under Title VII require an employee to prove that the employee would not have suffered an adverse employment action “but for” the employer’s retaliatory conduct. This new “but for” legal standard places a much higher burden of proof on employees alleging unlawful retaliation under Title VII.

In Nassar, the Court distinguished the applicable legal standard for a discrimination claim from that of a retaliation claim. Under Title VII, the applicable legal standard for a claim of status-based discrimination (i.e., one based on race, color, religion, sex or national origin) is whether a discriminatory motive was one of employer’s motivations in taking the adverse employment action; a very low evidentiary standard. By direct contrast, the applicable legal standard for a claim of unlawful retaliation is now “but for” causation: the employee must now prove that because of the employer’s unlawful retaliation, the employee suffered an adverse employment action.

To date, no California court has addressed the retaliation distinction as set forth in Nassar. That said, the decision in Nassar brings to mind the California Supreme Court’s recent holding in Harris v. City of Santa Monica. In Harris, the Court held that an employee claiming discrimination must prove that her protected activity was a substantial motivating factor in the employer’s decision to take the alleged adverse employment action. Nonetheless, even if the employee can meet this standard, if the employer can then prove that it would have taken the same adverse employment action for lawful reasons, the employer can escape liability for monetary damages, back pay and reinstatement. Although the Harris case addressed only the legal standard for a mixed-motive FEHA discrimination claim, not a claim of unlawful retaliation under FEHA, the combination of Harris and Nassar gives employers hope that the same employer-friendly standards will be applied to future retaliation cases in California.

For questions regarding retaliation claims or any other employment law issues, please contact any of our employment attorneys at LightGabler.