Author: Sandra F. Sperino, Professor of Law, University of Cincinnati College of Law
In late June of 2013, the Supreme Court decided University of Texas Southwestern Medical Center v. Nassar. The Court held that plaintiffs proceeding on a Title VII retaliation claim must establish their protected activity was the “but for” cause of an employment decision. This holding means that plaintiffs must establish a lower “motivating factor” standard for discrimination claims and the higher “but for” standard for retaliation claims. In this regard, Nassar complicates an already tangled legal landscape.
Nassar offers a silver lining for those seeking a less complex employment discrimination jurisprudence. Two sentences hidden within the opinion resolve a central problem in employment discrimination law. Nassar clarifies that the lower courts are mistaken when they divide Title VII claims into single-motive and mixed-motive claims. This organizational dichotomy, which has plagued the courts for more then two decades, created a host of difficulties in discrimination law that affected pleading, summary judgment, and jury instructions. Nassar represents a significant shift in how courts should perceive discrimination cases.