University of Texas Southwestern Medical Center v. Nassar (2013)

U.S. Supreme Court tightens burden of proof for retaliation claims

Intro

The Supreme Court has decided that an employee’s claims of retaliation in a discrimination case can only be substantiated if discrimination was the employer’s sole motive for the harm to the employee: that is, the employer would not take the action but for the discriminatory intent.

UT Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013).

This framework is clearly different from the framework we use to determine Title VII (race, color, national origin, sex and religion) discrimination.

The case also makes clear that the protected classes age and disability, not covered under Title VII, have their own frameworks. Namely, there is no mixed-motive instruction applicable to determining age discrimination, and with disability, the mixed motive instruction applies to both discrimination based on disability and retaliation.

The Case

Dr. Naiel Nassar was a faculty member at the University of Texas Southwestern Medical Center (UTSW). The university is affiliated with nearby Parkland Hospital, and Nassar

worked in Parkland’s HIV/AIDS clinic. Nassar is of Middle Eastern descent.

According to Nassar, Dr. Beth Levine, the doctor in charge of the entire clinic, harassed him because of his religion and national origin, telling Nassar’s manager, “Middle Easterners are lazy,” and criticizing Nassar’s work and number of billing hours more than she did the rest of the doctors.

On June 3, 2006 Nassar was officially offered a job in the Parkland clinic on Parkland’s payroll to start July 10, 2006. Nassar sent a letter announcing his resignation from the university because of Levine’s harassment. Dr. Fitz, Levine’s supervisor, objected to Parkland’s job offer to Nassar after Nassar’s resignation from UTSW and claims of discrimination and harassment, and the employment offer was withdrawn.

Nassar filed suit alleging two Title VII violations:

1. Discrimination and harassment based on race and religion.

2. Retaliation.

A jury found that the University retaliated against Nassar in violation of Title VII by preventing him from obtaining a position at a University-affiliated hospital after he resigned from the University.

UTSW first took the case to the 5th Circuit Court, which did not find Nassar was discriminated against but affirmed that he was retaliated against for his actions.

UTSW, however, objected to the decision on retaliation and took the case to the

CRO BRIEFING

Supreme Court. Justice Kennedy, delivering the opinion of the court, gave a new interpretation of the framework, distinguishing between a retaliation case and a discrimination case:

1. In Title VII discrimination claims based on race, color, national origin, sex and religion, mixed-motive instruction prevails. This means the complainant must show that discrimination was a reason, if not the only reason for the harm (e.g. failure to hire, firing, demotion). In other words, there can be a “mixed motive.”

2. In retaliation claims, however, the complainant must show that discrimination was the only reason for the harm. This does not allow for a mixed motive. It requires the complainant to prove that “but for” mal intent, he or she would not have suffered the retaliation.

Justice Kennedy claimed the main purpose of this new framework is to prevent frivolous lawsuits.

Note: This case makes clear that discrimination because of age and disability, both protected classes not under the Civil Rights Act of 1964, Title VII, are subject to different rules according to the ADEA and the ADA, respectively.

1. With age discrimination, it was ruled that the ADEA does not allow a plaintiff to prevail on mixed-motive evidence; discriminatory intent must be the but-for cause.

2. For disability, on the other hand, the ADA clearly protects against discrimination even in mixed-motive cases.

How this affects the CRO

CRO should continue to investigate according to HHS policy, regardless of this ruling. However, a court may not substantiate retaliation under Title VII if it is clear the respondent had another motive other than discriminatory intent.

Factors to keep in mind in an investigation of retaliation:

• Does the agency have a legitimate business related reason for the action?

• Was the agency’s decision made by a supervisor other than the one who was alleged to have discriminated?

• Did the decision-maker rely solely on evidence from the supervisor who was alleged to have discriminated?

We are less likely to see as many court rulings as before that dismiss the original complaint of discrimination but affirm the retaliation. Under the new ruling, it is much harder for employees to win the retaliation case in court.

Bottom Line

Investigate properly, as always, according to HHS policy. This will continue to put us in good stead if a complaint becomes a charge.