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"But For" Recent Supreme Court Opinion, Retaliation Would Remain Easier to Prove
By Melanie Renken on July 25, 2013 at 6:56 PM

MotivatingFactor_Update“But for,” “motivating factor,” “contributing factor…” Aren’t they all just different legal phrases that ultimately make an employer liable for discriminatory conduct? Absolutely not—and in its first significant employment decision of this term, the United States Supreme Court, by replacing “motivating factor” with “but for,” has made it more difficult for plaintiffs to prove retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”).

For those of us who practice employment law in Missouri, it remains all too fresh in our minds that the difference in these standards can be monumental.

The 2007 Daugherty v. City of Maryland Heights opinion represented a blow to employers across the state. Since the Missouri Supreme Court issued this en banc decision, plaintiffs alleging violations of the Missouri Human Rights Act (“MHRA”) no longer have to prove that their protected traits were motivating factors in the adverse employments at issue; rather, they simply must prove that a protected trait was a contributing factor. As the plaintiffs’ bar continues to emphasize, a contributing factor could, arguably, be comprised of as little as a fleeting thought. That is a world of difference from proving that an employment decision was motivated by an illegal consideration.

Recently, in UT Southwestern v. Nassar, the United States Supreme Court changed the standard for retaliation cases filed under Title VII to an even higher standard. Now, instead of proving that a plaintiff’s participation in a protected activity was a motivating factor in an employer’s employment decision, a plaintiff must prove that the adverse employment action would not have occurred but for the participation in protected conduct. In other words, instead of showing that engaging in a protected activity (such as complaining about discriminatory conduct) encouraged the employer’s decision, plaintiffs must prove that the decision would not have occurred if the plaintiff had not engaged in the protected activity at issue.

Perhaps more significant than the fact that succeeding on a Title VII retaliation claim will be difficult to prove at the trial level is the fact that courts should be much more inclined to decide these cases on the pleadings (i.e., motions for summary judgment). When a plaintiff must satisfy such a high burden of proof, it is much less likely that issues of fact will prevent summary judgment.

While the Nassar decision may not change your day-to-day employment decisions, it is a long-awaited step in the right direction for employers.

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