The U.S. Supreme Court Makes It Harder for Employees to Bring Title VII Retaliation Claims against Their Employers

On June 24th, the U.S. Supreme Court issued an opinion that changed the standard for employees who bring Title VII retaliation claims against their employers. The effect that this decision will have on California employers remains to be seen.  California’s civil rights statute, the Fair Employment and Housing Act [FEHA], applies a different causation standard to retaliation cases.

The U.S. Supreme Court, in University of Texas Southwestern Medical Center v. Nassar, established the “but-for” causation standard for retaliation claims brought under Title VII.  Under this new standard, a retaliation claim will fail if a complainant cannot establish that an employer’s design to retaliate was the sole cause for the adverse employment action taken against the employee.  The Court’s new standard is a departure from the “motivating factor” standard applied in Title VII discrimination claims which holds that an employer’s proof that “other factors also motivated the action” will not defeat the discrimination claim.  The effect of the Court’s decision it that it creates a dual standard for discrimination and retaliation claims. Under the Nassar standard, an employee faces a higher burden to bring a successful retaliation claim against their employer.

California Has a Broader Standard for Retaliation Claims Brought Under FEHA

California has a much broader standard than the newly created Nassar “but-for” causation standard. In California, employers can be liable for retaliation if an employee can establish that their protected conduct was a “substantially motivating reason” for the employer’s adverse employment action, i.e., termination, demotion, etc.  A “substantially motivating reason” is defined as a reason that actually contributed to the adverse employment action.  It does not have to be the only motivating reason.

The California Judicial Council approved a supplemental and revised California Civil Jury Instruction for the “substantial motivating reason” standard for FEHA retaliation claims within days after the U.S. Supreme Court rendered its decision in Nassar.  Even though California courts regularly look to federal precedent to interpret our state statutes, it is unclear how California courts will reconcile the conflict between the new federal retaliation standard under Title VII with our state’s FEHA requirements for retaliation claims.

See also California Fair Employment and Housing Act

Resolution of these complex legal issues requires a thorough understanding of the state and federal employment laws to discern how they interact and impact different employers. Employers faced with any harassment, discrimination, and retaliation claims should contact competent employment law attorneys who can evaluate the unique set of facts and resolve the complex legal issues at play in each employment dispute.