The Supreme Court is considering whether “mixed-motive” retaliation claims are permissible under Title VII of the Civil Rights Act of 1964. In University of Texas Southwestern Medical Center v. Nassar, the court will decide whether a plaintiff claiming retaliation must prove that the employer’s retaliatory motive was the “but-for” cause of an adverse employment action, or whether the plaintiff can prevail by demonstrating that retaliation was one of several motivating factors. The questioning during last week’s oral argument suggests that the court is closely divided but may lean toward applying the more demanding causation standard.
In Price Waterhouse v. Hopkins, the Supreme Court adopted a burden-shifting framework for proving discrimination under Title VII. It held that a plaintiff alleging discrimination could satisfy his or her initial burden of proof by showing that the discrimination was “a motivating factor” in an adverse employment decision. The burden then shifted to the employer, which could avoid liability by proving that it would have taken the same action regardless of the discriminatory motive.