U.S. Supreme Court Rejects Mixed-Motive Instruction for Title VII Retaliation Cases

Title VII of the civil Rights Act of 1964 is the primary Federal statute that prohibits employers from discriminating against employees on the basis of the race, religion, sex and national origin. In order to lessen and clarify a plaintiff’s burden of proof in discrimination cases, Congress amended Title VII in 1991 to provide that discrimination occurs when a prohibited factor is a motivating factor for an adverse employment action.  This “mixed motive” standard allows for limited liability to attach even when an employer would have taken the adverse employment action for other permissible reasons.  In contrast, a traditional “but for” discrimination standard requires an employee to prove that an employer would not have taken the adverse action ”but for” the discriminatory motive.   In University of Texas Southwestern Medical Center v. Nassar (2013). U.S. Supreme Court considered whether Title VII Retaliation cases, which are not expressly cited in the codification of the “mixed motive” standard are nonetheless entitled to apply the lesser burden of proof.  In a 5-4 decision, the Supreme Court rejected this argument, holding that absent clear Congressional intent, the higher “but for” standard continues to apply to Retaliation cases advanced under Title VII and other similar statutes.