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Supreme Court Raises Bar for Workers Suing Employers for Retaliation

Last week we covered the Supreme Court’s revised definition of “supervisor” in Vance v. Ball State University, held on July 24th, 2013.

It wasn’t the justices’ only pro-employer decision made that day. In University of Texas Southwestern Medical Center v. Nassar, the court ruled 5-4 against a former professor and physician who had sued the university for retaliation.

Physician Naiel Nassar (pictured above), who is Muslim and of Middle Eastern descent, claimed he had lost a new job at a hospital after he’d written a complaint about the medical school’s chief of infectious diseases. The chief, he said in a resignation letter, had harassed Nassar because of his religion and ethnicity. After he sent the letter, Nassar’s job offer was revoked.

Since his new job was affiliated with the university, he accused the school’s administrator of persuading hospital officials to cut the job offer in retaliation. Initially Nassar was awarded $3 million in damages – a decision that was appealed by the university all the way to the Supreme Court. However, the Supreme Court adopted a “but-for” test, which meant Nassar had to provide “proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”

In short, Nassar had to prove that the hospital would have never revoked its job offer if the university’s chief hadn’t harassed him. There could be no other factors leading to the hospital’s decision to deny Nassar the job. The case was sent back to the lower courts, where Nassar will have to present evidence meeting the Supreme Court’s new standard.

How will the justices’ decision affect California employment lawcases? Time will tell as California law would, not surprisingly, call for a different standard.  In our great state, the plaintiff in a retaliation case must only prove that a retaliatory reason was at least a substantial or motivating factor in the adverse employment decision.

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 be successful in asserting retaliation claims even if the employer would have taken the adverse action in question with or without any alleged retaliatory intent.


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