In a welcome decision, University of Texas Southwestern Medical Ctr. v. Nassar, No. 12-484 (June 24, 2013), the U.S. Supreme Court ruled yesterday that retaliation claims under Title VII of the Civil Rights Act of 1964 must be established using a “but-for” causation standard, denying the argument asserted by plaintiff and the EEOC that the more easily satisfied “motivating factor” test should be used in determining causation in retaliation cases. Employers thus can successfully defend retaliation claims under Title VII unless an employee can show they would not have taken the adverse action in question but for the alleged retaliatory intent. For more on the Supreme Court’s decision in Nassar, click here.
Not surprisingly, current California law would call for a different result. As one Court of Appeal has observed, “[I]t is well established that a plaintiff in a retaliation case need only prove that a retaliatory animus was at least a substantial or motivating factor in the adverse employment decision.” (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1492 [102 Cal.Rptr.3d 431].) In contrast to the “but-for” causation standard adopted by the U.S. Supreme Court in Nassar, California’s “substantial or motivating” factor test offers a greater chance for employees to successfully assert retaliation claims even when the evidence shows the employer would have taken the adverse action in question with or without any alleged retaliatory intent.