Monday, June 19, 2017

Retaliation, "but for" causation, and the prima facie elements

Back in 2013, in UTSMC v. Nassar, the Supreme Court held in no uncertain terms that "Title VII retaliation claims must be proved according to traditional principles of but-for causation." That seems simple enough - but wait, earlier this year the Third Circuit clarified/complicated things a bit.

In Carvalho-Grevious v. Del. St. Univ., the Third Circuit held:
Not official use.
At the prima facie stage, a plaintiff need only proffer evidence sufficient to raise the inference that her engagement in a protected activity was the likely reason for the adverse employment action, not the but-for reason.
Wait, doesn't that conflict with the Supreme Court's decision? Not exactly . . .

As the Third Circuit explained, the "but for" causation standard is the plaintiff's ultimate burden of persuasion. In other words, that's the thing the employee will ultimately have to prove to win the case. Whereas, the prima facie elements ((1) protected activity; (2) adverse action; and (3) causal connection) are just the initial burden of production in a broader burden-shifting framework. So, the bar for establishing the causal connection - and shifting the burden of production, but not persuasion, over to the employer to proffer a legitimate non-retaliatory reason - is the lower "likely reason" standard.

While the Nassar "but for" standard is a blessing for employers at trial, it does not appear to be carrying much weight in the summary judgment context (at least here in the Third Circuit).