At the end of the 2013 term, the United States Supreme Court decided a case involving a former employee’s claim for discriminatory harassment and retaliation under Title VII. In doing so, the nation’s highest court tightened the parameters necessary for employees to bring retaliatory discharge claims against their former employers.
Mississippi is an “employment at-will” state—meaning that employees for an indefinite term can have employment terminated “at the will” of the employer (or the employee) without legal repercussion. In other words, an employer can generally fire an employee for good reason, bad reason or no reason at all. There are certain federal and state law limitations to the “employment at-will” doctrine, such as Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, other federal laws and Mississippi common law regarding wrongful discharge.
On June 24, 2013, the U.S. Supreme Court decided the case of University of Texas Southwestern Medical Center v. Nassar, No. 12-484, — U.S. – (2013), which involved Nassar, a physician who was formerly employed at both the University of Texas and at Southwestern Medical Center. Nassar alleged that his supervisor at the University harassed him on the basis of his religion and ethnic heritage. Nassar resigned his position with the University, but secured a permanent position at the Medical Center. However, shortly after resigning, another faculty member allegedly learned of Nassar’s complaints and objected to the permanent offer of employment with the Medical Center. Nassar’s job offer was subsequently withdrawn and the physician sued for both harassment and retaliation under Title VII.
A jury awarded Nassar over $3 million in damages. However, the Medical Center appealed, arguing that the trial judge erred in instructing the jury that it only had to find that retaliation was a motivating factor for the supervisor’s action (i.e., a mixed motive instruction). Instead, the Medical Center argued that the trial court should have instructed the jury that it had to find that the adverse employment action would not have happened “but-for” the supervisor’s desire to retaliate. In affirming the lower court’s ruling to set aside the jury award, the U.S. Supreme Court agreed with the Medical Center and held that employees “must establish that his or her protected activity was a ‘but-for’ cause of the alleged adverse action by the employer.”
The Supreme Court’s opinion in Nassar creates a different and more stringent standard of proof for retaliation cases, as opposed to “regular” employment discrimination cases arising under Title VII (or other discrimination statutes). In typical discrimination cases, employers face exposure in “mixed motive” situations—that is, if a jury finds that wrongful discrimination was just a motivating factor (as opposed to the motivating factor) for an adverse employment decision. For employers, the Nassar opinion provides important diminution of potential liability in retaliatory discharge cases.
This Newsletter is a publication of the Labor and Employment Department of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi. This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.
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