Yesterday in The Chronicle of Higher Education, Peter Schmidt reviewed the competing interests at issue in University of Texas Southwestern Medical Center v. Nassar, the case of a physician and professor who claims he was retaliated against for accusing his supervisor of religious discrimination. Oral arguments heard by the U.S. Supreme Court Wednesday focused on whether the UT Southwestern administrator would be liable if discrimination was a substantial factor in his actions or whether the plaintiff would have to prove that discrimination was the primary factor.
Let’s look more closely at what plaintiffs need to prove in retaliation cases.
As in most line-drawing debates, extreme cases are relatively straightforward. For example, courts have held that if an employer can prove it definitely fired an employee based on a particular nondiscriminatory reason, it will not be liable for discrimination. Conversely, if an employee can prove that the employer definitely would not have fired him based only on the purported nondiscriminatory reason(s), the employer will be liable. This is the "but for" framework—the adverse employment decision would not have happened but for the discrimination.
Much trickier are cases where it is unclear what would have happened absent the discriminatory motive. In those cases, a plaintiff can show that discrimination was a substantial or motivating factor, but cannot show with certainty that it was the determining factor. Because the employer often controls evidence as to what factors were considered in its decision, and because it is difficult to quantify the effect each of multiple factors may have had, most cases fall into this category.
Cases like this are where the "mixed motive" standard may come into play. Under this standard, if a university considered many factors—both discriminatory and nondiscriminatory—when it decided to take action against a professor, the institution could still be held liable if the professor alleging retaliation can prove that the discriminatory factors were a "substantial" or "motivating" factor.
The American Council on Education (ACE) and six other university coalitions filed an amicus curiae brief (PDF) asking the Court to place the burden on the plaintiff to show that a discriminatory motive was the determining factor for the UT Southwestern administrator—in other words, to apply the "but for" standard in Title VII retaliation cases.
The Alliance Defending Freedom and FIRE submitted an amicus brief (PDF) urging the Court to instead apply the "mixed motives" standard, "under which it could hold the medical school liable for retaliation even if other factors had played a role in the job denial." The American Association of University Professors (AAUP) also endorsed this standard in its amicus brief (PDF).
Schmidt’s piece articulates the stakes in the case nicely:
Each side is arguing that the position espoused by the other threatens academic freedom.
The [ACE] argues that applying a "mixed motives" standard in deciding Title VII retaliation claims would infringe on one of the key academic freedoms upheld in past Supreme Court rulings—the freedom of colleges to decide who may teach.
Using such a standard would "empower disgruntled employees to bring academic fights into the courts," the brief says. "Judges and juries would be put in a position to second-guess academic decisions including tenure, administrative appointments, and research funding."
But as our brief argues, troublesome realities of discrimination cases must be acknowledged:
[S]avvy administrators often cloak their retaliatory actions in seemingly benign critiques of educational or professional incompetence. Rarely can one say a decision was motivated by a single factor.
FIRE and ADF also ask the Court to consider potential ramifications of the case for First Amendment retaliation claims:
[I]f petitioner’s proposal is adopted, and the Court requires a "but-for" standard in Title VII cases, without specific instruction to the contrary from this Court the ruling may lead lower courts to conclude that First Amendment cases also require that standard of proof. Such a result would would diminish the ability of student and faculty litigants to effectively challenge unconstitutional censorship. Free speech would suffer in the end.
Stay posted to learn what the Supreme Court decides here on The Torch, and read the rest of Schmidt’s analysis in the Chronicle.