Standard of Proof in Title VII Retaliation Claims

On the same day it issued its decision in Vance, the Supreme Court also issued a decision settling the issue of what standard of proof applies to Title VII retaliation claims. In University of Texas Southwestern Medical Center v. Nassar, the Court held that a plaintiff who files suit claiming an employer retaliated against him must show that the employer’s intent to retaliate was the “but-for” cause of the resultant adverse action the employee suffered — e.g. termination, failure to promote, or the like. In so holding, the Court rejected the more permissive standard applied to discrimination cases brought pursuant to Title VII. A plaintiff alleging a discrimination claim pursuant to Title VII need only show that the employer’s intent to discriminate was a “motivating factor” in the adverse action the employee suffers. By contrast, Nassar says that a retaliation claim will be subject to a higher standard of proof. In so finding, the Court rejected the notion that retaliation itself may be a form of discrimination. The standard adopted in Nassar for retaliation claims is the same “but-for” standard the Court has adopted and now applies to age discrimination claims under the ADEA.