Today, the United States Supreme Court issued its decision in University of Texas Southwestern Medical Center v. Nassar. In that decision, the United States Supreme Court in a 5-4 ruling with Justice Kennedy being the swing vote, held that mixed motive is dead with respect to retaliation claims under title VII of the Civil Rights Act. The reasoning is such that this decision most certainly means mixed motive is dead with respect to retaliation claims under the ADA; thereby, giving a huge victory to ADA defense lawyers. On the other hand, the reasoning of the majority is such, that mixed motive is now in play under title I of the ADA; thereby, giving a huge victory to ADA plaintiff employment lawyers. To understand how this could be is the question we explore in the rest of this blog entry.
In this case, a physician of Middle Eastern heritage brought a claim against his employer alleging that he was discriminated against because of his heritage by his supervisor and also brought a retaliation claim alleging that he was retaliated against for complaining about the treatment he was receiving from his supervisor. The jury found for him on both claims. The United States Court of Appeals for the Fifth Circuit vacated the portion of the jury’s verdict with respect to his constructive discharge claim but affirmed the jury’s verdict with respect to his retaliation claim, adopting a mixed motive standard as the causation standard. University of Texas Southwestern Medical Center appealed to the United States Supreme Court. As mentioned above, in a 5 to 4 decision United States Supreme Court held that with respect to alleging a claim for retaliation under title VII of the Civil Rights Act, mixed motive is out and but for causation is in. However, the reasoning of their decision can only lead to the conclusion that mixed motive with respect to title I claims of the ADA is now in and with respect to retaliation claims of the ADA is now out. Here’s why.
First, Justice Kennedy and the majority make a distinction between status-based claims and retaliation claims. Status-based claims are subject to a mixed motive analysis as a result of the Price Waterhouse v. Hopkins decision, which he discusses in some detail. He also discusses how the Civil Rights Act was amended in 1991 so as to allow for limited recovery for mixed motive situations.
Second, he spends some time talking about Gross v. FBL Financial Services and that but for causation is required for claims under the Age Discrimination in Employment Act. He notes that title VII is very comprehensive, and therefore, its specific structure needs to be taken as it is laid out. In particular, the structure of title VII of the Civil Rights Act makes clear that status discrimination gets treated in one way and that there is no indication that retaliation should be treated in the same way. What is critical here for our purposes is that disability discrimination is status discrimination. That is, the plaintiff is alleging that an employer has discriminated against him based upon his or her status, i.e. having a disability.
Third, Justice Kennedy said that if Congress wanted mixed motive to apply to retaliation claims, “it could have inserted the motivating factor provision as part of the section applying to all such claims, such as 42 U.S.C. §2000e-5, which establishes the rules and remedies for all title VII enforcement actions.” (emphasis added) (Page 14 of decision from the opinion available at United States Supreme Court website, linked to above). With respect to the ADA, this language is a virtual slam dunk that mixed motive is in play with respect to title I claims because the ADA specifically references 42 U.S.C. § 2000e-5 as the remedies available to a plaintiff alleging discrimination under title I of the ADA. See 42 U.S.C. § 12117(a). I should point out here that further support of the argument that the ADA’s reference to § 2000e-5 in title I means that Congress intended to include mixed motive is the legislative history of why “qualified individual with a disability,” was kept in. In particular, Congress wanted to make clear that the indirect burden of proof, which presumes a motivating factor, was still in play. H.R. Rep. 110-730(I) at discussion of, “Discrimination on the Basis of Disability.” Further, that same legislative intent also says that the reason why Congress went from “because,” from the original ADA to “on the basis,” in the amendments act was to make the ADA more like title VII so that the emphasis would be placed on the critical inquiry of whether a qualified person with a disability have been discriminated against on the basis of disability and not on appointment preliminary question of whether a particular person was even a person with a disability in the first place. Id.
Fourth, Justice Kennedy specifically cites to the ADA. In particular, he notes that the ADA is also a comprehensive statutory scheme and that Congress in the ADA clearly spoke to retaliation separate and apart from status-based claims. This reasoning necessarily means that mixed motive with respect to retaliation claims under the ADA is dead (a huge victory for defense lawyers).
Fifth, Justice Kennedy and the majority discuss that there are sound policy reasons for making retaliation claims difficult to prove. In particular, the number of retaliation claims filed with the EEOC has outstripped those for every type of status-based discrimination except for race. Failing to hold otherwise, would contribute to the filing of frivolous claims. It would also raise the costs, financial and reputational, on an employer whose actions were not in fact the result of any discriminatory retaliatory intent. Finally, to hold otherwise would be inconsistent with the text and purpose of title VII.
Sixth, while the EEOC had a technical assistance manual saying that mixed motive applies to retaliation claims, Justice Kennedy was having none of it. In particular, he believed that the manual failed to address the specific provisions of the title VII statutory scheme, the amendments to title VII of the Civil Rights Act, and the Gross decision.
This decision was one of those decisions with the 5-4 breakdown with the liberal justices and the conservative justices being evenly split and Justice Kennedy being the swing vote. Accordingly, there was a vigorous dissent by the liberal justices. Their reasoning was that the majority decision doesn’t make any sense for a variety of reasons. First, retaliation for complaining about discrimination is tightly bonded to the core prohibition of discrimination based upon status and cannot be disassociated from it.
Second, jurors are going to have one heck of a time figuring out why retaliation has one set of causation standards and status-based decisions has another set of causation standards.
Third, until this decision, the Supreme Court had always held that a ban on discrimination encompasses retaliation.
Fourth, the dissent found it strange that 42 U.S.C. §2000e-2(m), the employment practices provision of the 1991 Civil Rights Act, which was designed to strengthen the act, was instead being used to actually limit the scope of remedies under that act.
Fifth, the dissent talks about how the statute the majority refers to in §2000e-2 actually goes beyond just retaliation provisions.
Finally, the dissent believes the EEOC technical assistance manual was entitled to deference.
So what does this all mean for the practitioner and ADA plaintiffs and Employers? It breaks down this way. Mixed motive is now available under title I of the ADA. Mixed motive is not available for retaliation claims (title V). What this means of course is that the possibilities for plaintiffs with respect to what they might be able to obtain in a title I matter has just expanded as has the costs of litigation and its ultimate resolution to the defendant. On the other hand, the ability of the plaintiff to successfully prove a retaliation claim just got more difficult. All this said, this case still does not answer the question as to whether when dealing with but for causation you could still have more than one cause, an issue that I discuss in another blog entry.. On a practical level, this means an employer taking adverse action against an employee needs to make sure that they have good cause for that action independent of any possible discriminatory animus or run the risk of at least some liability per the remedies that exist if the plaintiff can show motivating factor under 42 U.S.C. §2000e-5.