Nassar’s Silver Lining

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.[1]  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.[2]  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.

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