Posted by on June 24, 2013 in Blog

By Isaac Levey

Summer 2013 Legal Fellow

The U.S. Supreme Court today issued a deeply troubling decision today that could seriously weaken Americans’ ability to protect against discrimination in the workplace. The case, University of Texas Southwestern Medical Center v. Nassar, concerns a provision in Title VII of the Civil Rights Act of 1964 that protects employees from retaliation when they assert their rights. The Court held that the provision requires employees suing under it to show that there was no other reason for which they could have been fired or demoted other than retaliation. The decision is not only completely at odds with past law in this area, but it willfully ignores the reality of workplace life. AAI joined ADC in an amicus brief submitted in April in support of Plaintiff Dr. Naiel Nassar.


The plaintiff in the suit is Dr. Naiel Nassar, a physician of Egyptian descent who specializes in internal medicine and treating HIV/AIDS. He worked at the University of Texas Southwestern Medical Center (UTSW) for eleven years until 2006, when he resigned as a result of pervasive harassment and discrimination by his supervisor, Dr. Beth Levine. Levine became Dr. Nassar’s supervisor in 2004, and repeatedly told colleagues (and Dr. Nassar himself) that Nassar was an unsatisfactory physician, even though other colleagues agreed that his work was as good as or better than most. Dr. Levine also didn’t want to hire another Middle Eastern doctor in 2005, telling a colleague that “Middle Easterners are lazy.” When Dr. Nassar resigned, he wrote a letter saying Levine’s constant discrimination was the main reason he was quitting. This caused Dr. Gregory Fitz, the Chairman of Internal Medicine at UTSW, to prevent Nassar from getting another job in the UTSW system out of loyalty to Dr. Levine.

Title VII, a federal law that prohibits employment discrimination on the basis of “race, color, religion, sex, or national origin,” is one of the most important provisions of federal civil rights law. Passed as part of the landmark Civil Rights Act of 1964, it prohibits workplace discrimination both in the public and private sectors. It is this law that makes it illegal for your boss to fire you, demote (or refuse to promote) you, or pay you less because of the color of your skin, your sex, or your ethnicity. The Court called this “status-based discrimination.” This provision (Title 42, United States Code, Section 2000e-2) protected Dr. Nassar from discrimination based on his Middle Eastern ancestry.

Importantly, Title VII also prohibits retaliation based on asserting your federally protected rights. A separate provision, 42 U.S.C. § 2000e-3, prohibits discriminating against an employee for “oppos[ing]” anything the employer does that violates Title VII, or bringing a lawsuit or testifying that the company discriminates. This anti-retaliation provision applies not only to victims of discrimination, but also protects employees complaining about discriminatory policies that might not personally affect them (e.g., a white employee protesting discrimination against black employees).

Title VII recognizes that most employment decisions aren’t made for only one reason. In a discrimination case, an employer can avoid some (but not all) damages by showing that even if they were partially motivated by race, sex, etc., they had another good reason to fire or demote the employee. This is known as a “mixed-motive” defense. But importantly, once the plaintiff has shown that illegal discrimination was involved, the burden of proof shifts: the employer must prove that some other, legitimate reason existed. In any event, the defense only limits damages; the employer has still violated Title VII and can be responsible for attorney’s fees and court costs. Two provisions of the law, sections 2000e-2(m) and 2000e-5(g)(2), clearly state that in a case involving “status-based” discrimination, the “mixed-motive” defense only limits damages and does not allow the employer to escape liability altogether.

The Court’s Decision

Dr. Nassar’s suit was based on the anti-retaliation provision (section 2000e-3); he alleged that UTSW refused to give him another job because he had asserted his right to be free of discrimination based on his ethnic heritage. The jury found he had clearly asserted his rights, and that the refusal to hire him was in retaliation for his complaint. If his suit had been under the “status-based” provision, that would have been enough to win the case, but UTSW would be allowed to limit their damages by showing some legitimate “mixed-motive” reason for not hiring Dr. Nassar. The question in this case was whether that framework applies to a retaliation suit as well as one involving “status-based” discrimination.

Remarkably, the Court answered no. In an opinion by Justice Anthony Kennedy, five Justices concluded that Dr. Nassar had to show “but-for causation” – that there was no other reason beyond retaliation for UTSW to refuse to rehire him. The basis of the Court’s decision is that section 2000e-2, the provision of Title VII prohibiting “status-based” discrimination and limiting the “mixed-motive” defense, is separate from the anti-retaliation provision in section 2000e-3. Even though the provisions were enacted together and use nearly identical terms, even though they are equally important in protecting employees from workplace discrimination, and even though it is a long-standing principle of civil rights law that retaliation is just as insidious as “status-based discrimination,” the Court refused to consider the provisions jointly. Since Congress had only provided that the mixed-motive defense was limited with respect to § 2000e-2, that limitation didn’t apply to § 2000e-3.

This conclusion is alarming and flatly contradicted by established precedent. Protection from retaliation is a crucial part of employment discrimination law, because even if employees are legally protected from discrimination, very few will assert their rights if they can be fired or punished for doing so. As Justice Ruth Bader Ginsburg explained in her dissenting opinion, the Court has always understood (until now) that employees can be protected by civil rights laws only if they “feel free to approach officials with their grievances.” By contrast, today’s decision considers an employee’s actual rights to be completely separate from the protection against retaliation for asserting those rights, a reading completely contrary to precedent as well as common sense and logic.

What the Decision Means

It is a matter of common sense that employment decisions are not caused by one factor. The Nassar decision allows any employer who punishes an employee for asserting his/her rights to avoid liability if they can think of one reason – say, a minor disciplinary infraction, or occasionally being late to work – that would otherwise justify their decision. It places the burden on the employee to show that there was no such other motive. Employees are henceforth placed on notice: if you assert your rights to be free of workplace discrimination, you’d better have a spotless record. Otherwise, your boss can fire you and say it was because you occasionally provided subpar customer service, you showed up ten minutes late to work last week, or you didn’t get a project in on time once.

Naiel Nassar’s employment discrimination suit is not over, because the Court simply sent the case back to the U.S. Court of Appeals for the Fifth Circuit to apply the new law the Justices created. But the legal rights of every American to not be discriminated against on the job, protected by Congress and enforced by the Court time and time again, are much less secure today than they were yesterday, because rights are hardly helpful if it is impossible to assert them without fear of retaliation. This idea is nearly as old as the Court itself: in 1803, the great Chief Justice John Marshall announced the principle that “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” In interpreting Title VII, the Court hasn’t completely eliminated that protection, but it has certainly cut it down. Congress should act to correct the Court’s grievous misreading of the Civil Rights Act as soon as possible.

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