According to the Court's opinion, the hospital agreed with the defendant university to employ its medical faculty in empty staff physician positions. The plaintiff doctor had been employed at various times by the hospital and university. More recently, he alleged that the new Chair of his sub-department was biased against him and subjected him to undeserved scrutiny of his billing and productivity. He complained to the Chair of the Department about this perceived bias. He also made arrangements with the hospital to continue to employ him even if he resigned his position with the university. Upon resigning from the University, he described in writing to the Department Chair that his resignation was caused by the national origin and religious harassment he was suffering from the Sub-department chair. Upset that the sub-department chair had been humiliated by the plaintiff's allegations, the Department Chair protested to the hospital about hiring the plaintiff as a staff physician and claimed that it violated the affiliation agreement to only employ non-faculty physicians. The hospital then withdrew its job offer to the plaintiff, who filed suit alleging constructive discharge from the harassment and retaliation in causing the hospital to withdraw its job offer. A jury found in his favor on both claims. The court of appeals reversed the constructive discharge finding, but affirmed the retaliation finding using a motivating factor analysis.
Title VII's anti-retaliation provision at 42 U.S.C. §2000e-3 prohibit discrimination (aka retaliation) as an "unlawful employment practice" "because" the employee opposed a practice that is unlawful under Title VII or because the employee participated in an investigation. Similarly, the anti-discrimination provision at 42 U.S.C. §2000e-2 prohibits discrimination "because of" the individual's race, color, religion, national origin or sex. In 1991, §2000e-2 was amended to include the following:
Except as otherwise provided in this subchapter, 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. (emphasis added).Notably, this amendment does not address retaliation under the opposition/participation section in §2000e-3, but specifally only addresses discrimination on the basis of race, color, religion, sex or national origin. In 2009, the Supreme Court held that the "because of" language in the ADEA required a "but for" causation analysis. Based on the plain language of Title VII, the Court determined that the retaliation provision similarly requires proof of "but for" causation.
The Court also noted the increasing frequency with which retaliation claims are now brought. Race discrimination is the only allegation filed more frequently with the EEOC.
[L]essening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment. Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation. If respondent were to prevail in his argument here, that claim could be established by a lessened causation standard, all in order to prevent the undesired change in employment circumstances. Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage. . . . It would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent.NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
