In yet another exciting victory for NELF, the Court embraced the arguments in NELF’s brief and held that an employee alleging retaliation under Title VII of the Civil Rights Act of 1964 must prove “but-for” causation (i.e., that the employer would not have taken the adverse employment action absent the retaliatory motive). The Court agreed with NELF in rejecting the alternative view, followed by many lower courts, that the employee needs only to prove that retaliation was a “motivating factor” in the decision, even if other, legitimate factors played a part. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion), a plurality of a fractured Court espoused this lesser standard of mixed-motive liability for Title VII discrimination claims. In the 1991 Civil Rights Act, Congress codified the Price Waterhouse “mixed motive” standard, but only with respect to Title VII discrimination claims. Congress did not add the “mixed motive” standard to the Title VII retaliation provision, or to any other federal anti-discrimination statute. Under the “motivating factor” standard, the burden of persuasion shifts to the employer to prove that it would have made the same decision regardless of any unlawful motive. The difference in these standards decides whobears the difficult burden of proof with respect to but-for causation: must the employee prove but-for causation to prevail, or must the employer disprove but-for causation to avoid liability? In this case, the Fifth Circuit affirmed the trial court’s jury instruction that shifted the burden of persuasion onto the employer to disprove but-for causation, under Price Waterhouse. The jury returned a verdict against the employer, the petitioner University of Texas Southwestern Medical Center.
Agreeing with NELF, the Supreme Court held that Congress in the 1991 Act apparently rejected Price Waterhouse except for Title VII discrimination claims. As NELF argued, the Court explained that it had effectively already decided this issue in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). In that case, the Court held that an employee suing under the Age Discrimination in Employment Act (“ADEA”) must prove but-for causation, based on the fact that Congress did not add any “mixed motive” standard to the ADEA in the 1991 Act, as it did with Title VII discrimination claims. Therefore, concluded the Court, the background common-law standard of but-for causation must apply to the ADEA. The Fifth Circuit in this case, however, concluded that Gross did not apply to Title VII retaliation claims and instead applied Price Waterhouse’s “motivating factor” standard of causation. Consequently, the jury in this case received a Price Waterhouse “mixed motive” instruction and returned a verdict against the university, finding that the university failed to prove that it would have made the same decision absent any unlawful animus.
Agreeing with NELF, the Court held that Gross establishes that an employee suing under any federal employment discrimination statute must prove but-for causation, unless Congress has expressly provided otherwise. According to Gross, Congress in the 1991 Act apparently rejected Price Waterhouse’s “motivating factor” burden shifting scheme as the default standard of causation for the federal employment discrimination statutes. This is so because, according to Gross, Congress deemed it necessary to authorize “motivating factor” claims in the liability section for Title VII discrimination claims. If indeed “motivating factor” claims had already constituted a basis for liability under Title VII, as Price Waterhouse concluded, then Congress would not have deemed it necessary to authorize “motivating” factor liability in the first place, and it would have merely limited the employer’s affirmative defense in the remedies section. The Court agreed with NELF’s careful reading of Gross on this crucial issue.