On Friday, the Supreme Court granted cert in University of Texas Southwestern Medical Center v. Nassar to address mixed motives in retaliation cases. In Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 268-69 (1989), the Supreme Court held that the discrimination provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), requires a plaintiff to prove only that discrimination was "a motivating factor" for an adverse employment action. In contrast, in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 179-80 (2009), the Court held that the Age Discrimination in Employment Act of 1967 (ADEA), Pub. L. 90-202, 81 Stat. 602, requires proof that age was "the but-for cause" of an adverse employment action, such that a defendant is not liable if it would have taken the same action for other, nondiscriminatory reasons.
The courts of appeals have since divided 3- 2 on the question of whether Gross or Price Waterhouse establishes the general rule for other federal employment statutes, such as Title VII’s retaliation provision, that do not specifically authorize mixed-motive claims.
The question presented in Nassar is stated by the Court as follows:
Whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).
Read More: Supreme Court's Docket Page for University of Texas Southwestern Medical Center v. Nassar