Monday, January 21, 2013

SCOTUS Grants Cert. in "Mixed Motive" Retaliation Case

On Friday, the Supreme Court granted certiorari in Univ. of Texas Sw. Med. Ctr. v. Nassar (SCOTUSblog page here). Please take a moment to admire the immaculate use of proper Bluebooking abbreviations (yes, I literally opened the online Bluebook to get it right - just for you).

Per the Petition for Certiorari, the question presented is:
Whether Title VII’s retaliation provision and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).
In other words, does Title VII retaliation require "but for" analysis (like Gross v. FBL under the ADEA) or "mixed motive" analysis (like Price Waterhouse v. Hopkins under Title VII discrimination provisions).

The Petition notes a 3-2 circuit split on the issue. This case could mark a huge expansion of Gross v. FBL's reach. In the words of Judge Easterbrook, applying Gross, "unless a statute (such as the Civil Rights Act of 1991) provides otherwise, demonstrating but for causation is part of the plaintiff’s burden in all suits under federal law." Fairley v. Andrews, 578 F.3d 518, 525–26 (7th Cir. 2009) (emphasis added). We may find out if Judge Easterbrook is right . . . .