Written by Galen T. Shimoda and Justin P. Rodriguez
In the recent United States Supreme Court Case of University of Texas Southwestern Medical Center v. Nassar, the Court handed down a decision that created a new dichotomy for employees to be cognizant of if they wish to bring retaliation claims under the Title VII. Prior to this decision, several U.S. Courts of Appeal held that an employee could be entitled to certain limited remedies under Title VII if they proved that the retaliatory acts complained of were motivated, at least in part, by the fact that the employee was engaged in protected activities. Examples of protected activities can include participation as a witness in EEOC or DFEH proceedings or opposing employer practices or policies that discriminate based on race, gender, etc.
While the mixed motive analysis still applies for status based discrimination claims (e.g. race and gender), Nassar eliminated this type of analysis for those making retaliation claims. Focusing on textual and structural differences in the statute for status based claims and retaliation claims, the Court took a step back for employee protections and declared that only "but-for" causation is sufficient to prove a retaliation claim under Title VII, meaning an employee would not be successful unless they could show that they would not have been terminated for any reason absent the protected activity. The potential negative impact for an employee asserting Title VII claims is found in the fact that there can be several bases supporting an employer personnel action at any given moment. Indeed, although an employee may be able to establish that a supervisor took the retaliatory action at least in part because the employee provided testimony in EEOC proceedings that his supervisor made racial epithets directed at minority employees, if there was also an attendance issue the employer could point to in support of the decision, the employer may escape Title VII liability.
While this decision may lead to instances of documented discriminatory motives being unaddressed under Title VII, there is good cause to believe Nassir will not affect California employees making claims based on the FEHA. In Harris v. City of Santa Monica, 56 Cal.4th 203 (2013), the California Supreme Court also recently addressed the issue of causation. While the Court did not specifically address retaliation claims, it did focus on the phrase "because of," in the FEHA, which is the same language that the Nassar Court focused on to justify a but-for causation standard. The Harris Court found that it was more consistent with the purposes of the FEHA to follow a mixed motive analysis rather than a but-for standard when interpreting the phrase "because of." A potential issue that may be left outstanding in Harris is that the retaliation provisions found in section 12940(h) are not worded exactly the same as those relating to status based discrimination, which is similar to what occurred in Nassar. However, the difference in wording is likely not enough for a court to justify a different result in a retaliation case because the FEHA uses a similar iteration of the "because of" causation language in the retaliation provision even though it may not mirror the phrasing of its status based discrimination sections. At the very least, this does not appear to be the sort of textual and structural difference that Nassar found so compelling to justify a different causation standard depending on the type of claims that were brought.
Luckily, with these distinctions in mind, California employees may still be able to seek relief to combat unlawful retaliation notwithstanding the fact that they might not be "perfect" employees. If you believe you may have retaliation or discrimination claims against your employer, contact our office to have your claims evaluated.