As employment law defense attorneys who represent employers and businesses in Texas, we have helped employers attempting to defend and prevent retaliation claims under Title VII. Retaliation claims against employers are on the rise in Texas. Over a third off all EEOC complaints these days include some form of retaliation allegation.
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on their personal characteristics, including their race, color, religion, sex, and national origin, as set forth in 42 U.S.C. § 2000e-2, referred to by the Court as “status discrimination.” Title VII also prohibits employers from retaliating against employees based on an employee’s opposition to employment discrimination or complaint of discrimination. See 42 U.S.C. § 2000e-3(a).
Before 2006, the Fifth Circuit, which includes Texas, used the standard of retaliation established in Mattern v. Eastman Kodak Company, 104 F.3d 702 (5 Cir. 1997). That case defined retaliation as an “ultimate employment decision” in response to an employee’s charge or participation in a charge. The effect of cases like Mattern was that unless an employee was actually fired, demoted, received a pay cut, or was not hired or promoted because of a discrimination charge, employees had difficulty prevailing on retaliation cases.
The Mattern court held that alleged action directed against an employee, such as hostility from fellow employees, theft of tools, a visit by supervisors to the employee’s private home, and placing the employee on final warning were not sufficient to constitute “adverse employment actions” for purposes of Title VII retaliation action. Such alleged actions were not the kinds of “ultimate employment decisions” which Title VII was intended to remedy, per the Mattern court.
In the same era that Mattern was decided, the Fifth Circuit also held in another case that an employer’s criticism of an employee without more does not constitute an actionable adverse employment action. The court stated that criticism contained in an evaluation is not an adverse employment action standing alone. A dean’s failure to award the professors certain merit pay increases did not constitute an actionable adverse employment action. Harrington v. Harris, 118 F.3d 359 (5th Cir. 1997)
But in a June 2006 decision, the United States Supreme Court broadened the definition of the term “retaliation” in Title VII of the Civil Rights Act of 1964. Burlington Northern & Santa Fe (BNSF) Railway Co. v. White, 548 U.S. 53 (2006). In that case, the employee filed a sexual discrimination complaint with the Equal Employment Opportunity Commission. After she filed the complaint, she was reassigned from operating a forklift to doing more menial tasks and was suspended without pay for over thirty days.
In finding that the employer’s conduct towards the employee was retaliation, the Burlington decision had the effect of then overruling the retaliation standards of several federal jurisdictions, including the Fifth Circuit. The Burlington court essentially stated that retaliation can take the form of any negative action that would effectively discourage a reasonable employee from making a discrimination charge. Retaliation would then no longer be confined to concrete decisions about hiring, firing, promotion, or pay, or even be limited to decisions that were related to the employment. An action that causes harm to an employee outside the workplace also seemed to fall under the broad umbrella of the Burlington court’s definition of retaliation.
While the Fifth Circuit Mattern standard was limited in its protection of employees, the U.S. Supreme Court standard in Burlington was so broad that it seemed to make employers uncertain about whether the slightest corrective action, criticism or discipline would invite a lawsuit for retaliation.
Following Burlington, often, the most common method employees used to try to prove that retaliation was the reason for an adverse action is through circumstantial evidence. The EEOC considered that a violation is established if there is circumstantial evidence raising an inference of retaliation and if the employer fails to produce evidence of a legitimate, non-retaliatory reason for the challenged action, or if the reason put forth by the employer is a pretext to hide true the retaliatory motive.
But more recent United States Supreme Court treatment of the subject of retaliation suggests that the pendulum has swung back to where it is not so favorable to employees. In June, 2013, the United States Supreme Court determined that an employee in a Title VII retaliation case must prove that the retaliation was the “but for” cause of the employer’s adverse action. University of Texas S.W. Med. Ctr. v. Nassar, No. 12-484 (June 24, 2013). In a narrow vote, by this decision, the Court rejected a decision of the U.S. Court of Appeals for the Fifth Circuit which had applied a significantly less burdensome standard which required that the employee only show that retaliation was one “motivating factor,” among others, that resulted in the adverse action in question. The Court stated that the “motivating factor” test applied only to status-based discrimination (discrimination on the basis of race, color, religion, sex, national origin, promotion etc.), not retaliation claims. In arriving at this perspective, the Court relied on its earlier decision in Gross v. FBL Fin. Serv., Inc., 557 U.S. 167 (2009), which had held that the Age Discrimination in Employment Act requires proof that age is “the but for cause” of an adverse employment decision.
Thus, according to the Nassar decision, different causation standards now apply to retaliation claims and status-based discrimination claims. The effect of Nassar is that employees have to prove that the alleged retaliation by the employer actually caused the harm that is alleged. The more lenient standard of “motivating factor”, which was rejected by the Court, would allow employees to prove liability even if the allegedly conduct were just one motivating factor for the adverse employment action, not the actual reason.
While this “new” approach is helpful to employers, retaliation is an area of law that remains fluid and ever changing. We advise employers to consult with counsel if confronted with even a hint of an allegation of retaliation, because the repercussions can be severe for employers who are not adequately protected. It is also a good idea to educate your supervisory and management level employees as to what may constitute retaliation under Texas and Federal law.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas employment law attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.