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Supreme Court ruling tightens causation rules for retaliation

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In a case legal experts describe as a victory for employers, plaintiffs will have a more difficult time proving retaliation as a result of the U.S. Supreme Court’s divided ruling in case brought by a Texas physician.

The high court held in its 5-4 ruling Monday in University of Texas Southwestern Medical Center v. Nassar that a defendant is not liable for an action if he would have taken the same action anyway for other, nondiscriminatory reasons. It rejected the standard that requires a plaintiff to prove only that discrimination was a motivating factor for an adverse employment action.

The ruling reversed a decision by a panel of the 5th U.S. Circuit Court of Appeals in New Orleans.

Lessening the causation rules in cases of wrongful employer conduct prohibited by Title VII of the Civil Rights Act of 1964 could “contribute to the filing of frivolous clams, which would siphon resources from efforts by employer, administrative agencies and courts to combat workplace harassment,” said the majority opinion.

In the underlying case, Dr. Nassar, an assistant professor at the Dallas-based medical school, felt that his supervisor, Dr. Beth Levine, treated him unfairly because of his Middle Eastern background. Dr. Nassar sought the same job at Parkland Hospital in Dallas, with which the medical school was affiliated.

However, an affiliation agreement between the medical school and the hospital, as well as the hospital’s rules, required that a physician seeking regular employment within the hospital’s geography be employed by the medical school. Based on this agreement, the medical center’s chair of internal medicine, Dr. Gregory Fitz, refused to hire Dr. Nassar, according to the medical center’s petition.

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However, unknown to Dr. Fitz, another hospital employee “continued to work behind the scenes” to hire Dr. Nassar at the hospital, and an offer letter was sent to him in July 2006. Dr. Nassar then wrote a letter resigning from the medical school and accusing Dr. Levine of discriminating against him.

The center withdrew its offer letter shortly afterward, according to court papers. Dr. Nassar sued the medical school for constructive discharge and retaliation. The jury was instructed that Dr. Nassar needed to prove only that discrimination was one of the motives for Dr. Fitz's actions.

A jury found the medical school liable for constructive discharge and retaliation and awarded him about $3.5 million in damages. A panel of the 5th Circuit subsequently reversed the constructive discharge verdict, but upheld the retaliation charge.

It remanded the case for reconsideration of Dr. Nasser's monetary recovery and award of attorney’s fees. The 5th Circuit denied the medical school’s petition for an en banc hearing in July 2012, and the center filed its appeal with the U.S. Supreme Court in October.

Commenting on the ruling Gregory Keating, a shareholder with law firm Littler Mendelson P.C. in Boston, said, “This case is a true watershed development in that it presents a dramatic shift in the court’s approach to retaliation claims.”

In its ruling Monday, the court “adopted a very strict test” for establishing causation, unlike several other cases the court has decided in recent years, which made retaliation easier to establish, said Mr. Keating, who was not involved in the case.

Patrick J. Bannon, a partner with law firm Seyfarth Shaw L.L.P. in Boston, who was not involved in the case, said that if the Supreme Court had ruled in Dr. Nassar’s favor, cases would be “a lot tougher to throw out on summary judgment.”

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