In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

UNIVERSITY OF TEXASSOUTHWESTERN MEDICAL CENTER,

Petitioner,v.

NAIEL NASSAR, M.D., Respondent.

On Writ of Certiorari to the United StatesCourt of Appeals for the Fifth Circuit

BRIEF OF AMICUS CURIAEDRI – THE VOICE OF THE DEFENSE BAR

IN SUPPORT OF PETITIONER

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

MARY MASSARON ROSS

President of DRI Counsel of RecordHILARY A. BALLENTINE

PLUNKETT COONEY

38505 Woodward Ave.Suite 2000Bloomfield Hills, MI 48304(313) 983-4801mmassaron@plunkettcooney.com

Counsel for Amicus CuriaeDRI – The Voice of the Defense Bar

NO. 12-484

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TABLE OF CONTENTS

Page(s)

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . i

Interest of Amicus Curiae . . . . . . . . . . . . . . . . . . . . . 1

Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . 3

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. The Decision Below Misreads the Language ofthe Statute, Which Requires a Plaintiff toEstablish That the Claimed RetaliationOccurred “Because” of Protected Conduct –APhrase the Court Has Interpreted in a SimilarContext to Require a Showing of “But-For”Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II. The Motivating-Factor Standard CompromisesDefendants’ Ability to Erect a Defense andImposes Substantial Burdens on Defendants . 13

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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TABLE OF AUTHORITIES

Page(s)

CASES

Abrams v. Lightolier Inc., 50 F.3d 1204 (3d Cir. 1995) . . . . . . . . . . . . . 18, 19

BedRoc Ltd., LLC v. U.S., 541 U.S. 176 (2004) . . . . . . . . . . . . . . . . . . . . . . . 7

Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) . . . . . . . . . . . . . . . . . 11, 12, 13

Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978) . . . . . . . . . . . . . . . . . . . . . . 20

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) . . . . . . . . . . . . . . . . . . . . . . . 17

Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U.S. 246 (2004) . . . . . . . . . . . . . . . . . . . . . 3, 6

Fairley v. Andrews, 578 F.3d 518 (7th Cir. 2009) . . . . . . . . . . . . . . . 14

Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) . . . . . . . . . . . . . . . . . . passim

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Helvering v. Stockholms Enskilda Bank, 293 U.S. 84 (1934) . . . . . . . . . . . . . . . . . . . . . . . . 5

Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008) . . . . . . . . . . . . . . . . 17

McMenemy v. City of Rochester, 241 F.3d 279 (2d Cir. 2001) . . . . . . . . . . . . . . . . 12

Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71 (2006) . . . . . . . . . . . . . . . . 5, 9

Nassar v. University of Texas Southwestern Medical Center, 674 F.3d 448 (5th Cir. 2012) . . . . . . . . . . . . . 4, 10

Newman v. Piggie Park, Enterprises, Inc., 390 U.S. 400 (1968) . . . . . . . . . . . . . . . . . . . . . . 20

Osborn v. Bank of the U.S., 22 U.S. 738 (1824) . . . . . . . . . . . . . . . . . . . . . . . . 7

Peterson v. Utah Dep’t of Corr., 301 F.3d 1182 (10th Cir. 2002) . . . . . . . . . . . . . 12

Robinson v. Shell Oil Co., 519 U.S. 337 (1997) . . . . . . . . . . . . . . . . . 7, 11, 12

Russello v. U.S., 464 U.S. 16 (1983) . . . . . . . . . . . . . . . . . . . . . . . 11

White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008) . . . . . . . . . . . . . . . 17

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STATUTES

29 U.S.C. § 623(a)(1) . . . . . . . . . . . . . . . . . . . . . . . 4, 8

42 U.S.C.§ 2000e, et seq. . . . . . . . . . . . . . . . . . passim

42 U.S.C. § 2000e-2(m) . . . . . . . . . . . . . . . . . 3, 10-11

42 U.S.C. § 2000e-3(a) . . . . . . . . . . . . . . . . . 3, 7-8, 12

42 U.S.C. § 2000e-5(k) . . . . . . . . . . . . . . . . . . . . . . . 20

The Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991) . . . . . . . . . . . . . . . . . . . . . 10

OTHER AUTHORITIES

The American Heritage Dictionary of the EnglishLanguage, (4th ed. 2006) . . . . . . . . . . . . . . . . . . . 9

David A. Cathcart & Mark Snyderman, TheCivil Rights Act of 1991, SF41 ALI-ABA 391(2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 17

James Concannon, Reprisal Revisited: Gross v. FBLFinancial Services, Inc. and The End of theMixed Motive Title VII Retaliation, 17 Tex. J. onC.L. & C.R. 43 (Fall 2011) . . . . . . . . . . . . . . . . . 12

110 Cong. Rec. 13837 (1964) . . . . . . . . . . . . . . . . . . 15

Louis Kaplow, Rules versus standards: An economicanalysis, 42 Duke L.J. 557 (1992) . . . . . . . . . . . 16

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Martin J. Katz, The Fundamental Incoherence ofTitle VII: Making Sense of Causation inDisparate Treatment Law, 94 Geo. L. J. 489(2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

W. Page Keeton et al., Prosser and Keeton on theLaw of Torts § 41 (5th ed. 1984) . . . . . . . . . . . . 13

James Kent, Commentaries on American Law (1826) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Wayne N. Outten et al., When Your EmployerThinks You Acted Disloyally: The Guaranteesand Uncertainties of Retaliation Law, 693 Prac.L. Inst.-Litig. 151 (2003) . . . . . . . . . . . . . . . . . . 21

John D. Rue, Note, Returning to the Roots of theBramble Bush: The “But For” Test RegainsPrimacy in Causal Analysis in the AmericanLaw Institute’s Proposed Restatement (Third) ofTorts, 71 Fordham L. Rev. 2679 (2003) . . . . . . 14

Kathleen M. Sullivan, The justices of rules andstandards, 106 Harv. L.R. 22 (1992) . . . . . . . . . 16

U.S. Equal Employment Opportunity Commission,Charge Statistics, FY 1997 Through FY 2012,available at http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm . . . . . . . . . . . . . . . . 6, 21

Webster’s Ninth Collegiate Dictionary (1987) . . . . . 9

Robert M. Weems, Selected Issues and Trends inCivil Litigation in Mississippi Federal DistrictCourts, 77 Miss. L.J. 977 (2008) . . . . . . . . . . . . 15

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Michael J. Zimmer, Chaos or Coherence: IndividualDisparate Treatment Discrimination and theADEA, 51 Mercer L. Rev. 693 (2000) . . . . . . . . 14

Michael J. Zimmer, The Emerging UniformStructure of Disparate Treatment DiscriminationLitigation, 30 Ga. L. Rev. 563 (1996) . . . . . . . . 18

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INTEREST OF AMICUS CURIAE1

DRI – The Voice of the Defense Bar (“DRI”) is avoluntary membership organization comprised of morethan 22,000 attorneys defending businesses andindividuals in civil litigation. DRI is committed toenhancing the skills, effectiveness, and professionalismof defense attorneys around the globe. Therefore, DRIseeks to address issues germane to defense attorneysand to the civil justice system. DRI has long been avoice in the ongoing effort to make the civil justicesystem more fair, efficient, balanced, and - wherenational issues are involved – consistent. To promoteits objectives, DRI participates as amicus curiae incases such as this that raise issues of importance to itsmembership, their clients, and the civil justice system.

Based on its members’ extensive practicalexperience, DRI is uniquely suited to explain why thisCourt should reverse the Fifth Circuit’s judgment inthis case. DRI’s members are regularly called upon todefend their clients against Title VII retaliation anddiscrimination claims in federal courts around thecountry. Accordingly, DRI’s members haveconsiderable familiarity with the interplay between thecausation standard employed in any given case and theresulting impact that standard imposes on adefendant’s ability to mount a defense. Not only are

1 Letters of consent have been filed with the Clerk. Pursuant toSupreme Court Rule 37.6, amicus curiae state that no counsel fora party has written this brief in whole or in part and that noperson or entity, other than the amicus curiae, its members, or itscounsel, has made a monetary contribution to the preparation orsubmission of this brief.

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DRI’s members well-versed in how retaliation cases arepleaded, briefed, and argued, they also witness first-hand how the causation standard is distilled into juryarguments and presentations at trial. The FifthCircuit’s decision in this case will have a profoundeffect on businesses and individuals who may besubject to these types of suits since it authorizesplaintiffs to proceed with Title VII retaliation claims onan undemanding causation standard that Congressnever specifically embraced and that is inconsistentwith the language used in the statute that governsretaliation claims in the context of Title VII. Leftunreviewed by this Court, the Fifth Circuit’s decisionstrips defendants of their ability to mount a defense toa Title VII retaliation claim and forces defendants todisprove any claimed retaliatory motive no matter howsmall a part it played in the challenged decision.

DRI’s members also know, as a result of theirexperience in defending litigation, of the need forclarification of the law regarding the proper causationstandard applicable in federal retaliation claimsbrought pursuant to Title VII. If affirmed, the decisionbelow will adversely affect the judicial system and therule of law by subjecting defendants to broad-reachingliability for retaliation that Congress did not intend.DRI has a strong interest in assuring that a uniformrule is adopted which safeguards plaintiffs’ ability tobring Title VII retaliation claims but requires plaintiffsto satisfy “but-for” causation, a standard that isconsistent with the statutory language enacted byCongress.

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SUMMARY OF ARGUMENT

Title VII of the Civil Rights Act of 1964, asamended, 42 U.S.C.§ 2000e, et. seq., prohibits anemployer from taking an adverse employment actionagainst an employee “because he has opposed anypractice made an unlawful employment practice” byTitle VII or “because he has made a charge, testified,assisted, or participated in any manner in aninvestigation, proceeding, or hearing” under Title VII.42 U.S.C. § 2000e-3(a). By promising punishment forretaliatory acts, the retaliation provision of Title VIIsupports the statute’s ultimate purpose – to protectagainst discrimination in the workplace. But whenCongress amended Title VII’s discrimination provisionin 1991 to set forth a mixed-motive causation standard,42 U.S.C. § 2000e-2(m), it left the language of § 2000e-3(a) unchanged. The decision to impose a morestringent causation burden on plaintiffs pursuing TitleVII retaliation claims through use of the word“because” was intentional. Gross v. FBL FinancialServices, Inc., 557 U.S. 167, 174 (2009) (“WhenCongress amends one statutory provision but notanother, it is presumed to have acted intentionally.”). Thus, the Fifth Circuit was wrong to engraft a looserstandard on this claim despite Congress’s retention ofthe word “because,” a word that has long connoted “butfor” causation in the common law, in common language,and in court interpretations of other statutoryprovisions.

The court is bound to interpret and apply statutesconsistent with their express language. Engine Mfrs.Assn. v. South Coast Air Quality Management Dist.,541 U.S. 246, 252 (2004). Under the plain language of

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the retaliation provision, a plaintiff must prove thatthe adverse employment action occurred “because” ofthe charge; in the context of this case, the Respondentwas required to prove that he was retaliated againstbecause he complained about his supervisor’s allegeddiscriminatory conduct. However, the Fifth Circuitheld that plaintiffs suing for workplace retaliationunder Title VII need only prove that retaliation wasone of any number of factors in the challengedemployment decision. Nassar v. University of TexasSouthwestern Medical Center, 674 F.3d 448, 454 (5thCir. 2012). In other words, the Fifth Circuit concludedthat the proper causation standard applicable toretaliation claims brought pursuant to Title VII is amixed-motive standard. Id. This runs directly afoul ofthe Court’s determination in Gross that the AgeDiscrimination in Employment Act (“ADEA”), 29U.S.C. § 623(a)(1), which uses the same language as isat issue here, imposes a “but-for” causation burden onplaintiffs bringing age discrimination claims. 557 U.S.at 180. In essence, the Gross Court determined that byvirtue of the “because of” language in the ADEA, “aplaintiff bringing a disparate-treatment claim pursuantto the ADEA must prove, by a preponderance of theevidence, that age was the ‘but-for’ cause of thechallenged adverse employment action.” Id.Accordingly, the Gross Court rejected the burden-shifting approach of other statutes that requires anemployer to show that it would have taken the sameaction regardless of age, even if plaintiff has producedsome evidence of age as a motivating factor for theadverse action.

The same result should issue under Title VII’sretaliation provision, which includes the same

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“because” language found in the ADEA. In fact, thelaw favors this result. Helvering v. StockholmsEnskilda Bank, 293 U.S. 84, 87 (1934) (noting that“there is a natural presumption that identical wordsused in different parts of the same act are intended tohave the same meaning.”); Merrill Lynch, Pierce,Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 86 (2006)(same). Where common words or phrases areinterpreted differently from one employment statute toanother, respect for the rule of law is undermined andthose advising employers about potential liability areleft to guess as to how the language will be interpreted.

Left intact, the Fifth Circuit’s precedent-settingerror threatens to create grave difficulties foremployers forced to defend employment decisions withsuch a low standard regarding the cause of atermination or adverse employment action. Given therelative ease with which a plaintiff can show that someprotected conduct was “a motivating factor” in theemployer’s decision, most retaliation claims under thisframework will survive the summary judgment stage.At trial, juries will struggle to isolate one or anotherfactor, and may err on the side of rendering a verdictagainst the employer even though the proofsdemonstrate that the employer would have taken theadverse decision absent a retaliatory animus. Thesedifficulties, and the attendant risk, will force employersto settle even meritless claims when the standard islowered to allow liability for “a motivating factor”rather than a clear standard normally implied by but-for causation, i.e., but for the desire to retaliate, theemployer would not have taken the adverse decision.With the number of Title VII retaliation charges on therise, this phenomenon is likely to only increase in

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coming years. U.S. Equal Employment OpportunityCommission, Charge Statistics, FY 1997 Through FY2012, available at http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (last visited February 28, 2013).

This case provides this Court with the opportunityto reaffirm that the Legislature’s intent as expressed inthe language of its statutes must control. Inserting amotivating-factor standard into Title VII retaliationclaims not only lessens the burden of proof for plaintiffsand in turn increases the burden on employers, but itassumes the legislative power of balancing theseinterests while disregarding legislative intent.

ARGUMENT

I. The Decision Below Misreads the Language ofthe Statute, Which Requires a Plaintiff toEstablish That the Claimed RetaliationOccurred “Because” of Protected Conduct –APhrase the Court Has Interpreted in a SimilarContext to Require a Showing of “But-For”Causation.

The issue that confronts the Court is, at its core, oneof Congressional intent, and thus capable of resolutionby the bedrock principles of statutory interpretationthat have guided the judiciary for decades. Chiefamong these is the canon that interpretation of astatute “begin[s] with the language employed byCongress and the assumption that the ordinarymeaning of that language accurately expresses thatlegislative purpose.” Engine Mfrs. Assn. v. South CoastAir Quality Management Dist., 541 U.S. 246, 252(2004) (internal quotation marks omitted). When the

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language used is unambiguous, the statutory text bothbegins and ends the inquiry. BedRoc Ltd., LLC v. U.S.,541 U.S. 176, 183 (2004). See also Robinson v. ShellOil Co., 519 U.S. 337, 340 (1997) (the “inquiry mustcease if the statutory language is unambiguous and‘the statutory scheme is coherent and consistent.’”).Chief Justice John Marshall aptly observed that thepower of the judiciary is confined to giving effect to thewill of the Legislature as expressed in its statutoryenactments:

Judicial power, as contradistinguished from thepower of the laws, has no existence. Courts arethe mere instruments of the law, and can willnothing. When they are said to exercise adiscretion, it is a mere legal discretion, adiscretion to be exercised in discerning thecourse prescribed by law; and, when that isdiscerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purposeof giving effect to the will of the Judge; alwaysfor the purpose of giving effect to the will of theLegislature; or, in other words, to the will of thelaw.

Osborn v. Bank of the U.S., 22 U.S. 738, 866 (1824) (perMarshall, C.J.).

It is with these principles in mind that the languageof the retaliation provision of Title VII of the CivilRights Act of 1964 (the “Act”), must be examined. Thatstatute provides:

It shall be an unlawful employment practice foran employer to discriminate against any of his

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employees or applicants for employment, for anemployment agency, or joint labor-managementcommittee controlling apprenticeship or othertraining or retraining, including on-the-jobtraining programs, to discriminate against anyindividual, or for a labor organization todiscriminate against any member thereof orapplicant for membership, because he hasopposed any practice made an unlawfulemployment practice by this subchapter, orbecause he has made a charge, testified,assisted, or participated in any manner in aninvestigation, proceeding, or hearing under thissubchapter.

42 U.S.C. § 2000e-3(a) (emphasis added). While theCourt has not had occasion to interpret the word“because” - and the causation standard it connotes - inthe context of § 2000e-3(a), the Court has held, in thecontext of other similarly-worded statutes, that theword “because” requires a plaintiff to satisfy “but-for”causation. Gross v. FBL Financial Services, Inc., 557U.S. 167 (2009). In Gross, the Court was called upon tointerpret the Age Discrimination in Employment Act(“ADEA”), 29 U.S.C. § 623(a)(1), which makes it“unlawful for an employer…to fail or refuse to hire orto discharge any individual or otherwise discriminateagainst any individual with respect to hiscompensation, terms, conditions, or privileges ofemployment, because of such individual’s age[.]”(Emphasis added). Noting that “because” is ordinarilydefined to mean “for the reason that[,]” the Gross Courtrejected outright the argument that the ADEAauthorizes a mixed-motives age discrimination claimunder which a plaintiff could prove age discrimination

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simply by showing that age was a motivating factor inthe employment decision even though anotherlegitimate reason existed for the defendant’s conduct.557 U.S. at 176. To the contrary, the Gross Court heldthat to establish a disparate-treatment claim under theADEA’s clear language, “a plaintiff must prove by apreponderance of the evidence…that age was the ‘but-for’ cause of the challenged employer decision.” 557U.S. at 177-78. In this way, the Gross Court’s holdingreflects a commitment to the most fundamentalsemantic rule of statutory interpretation. See, e.g.,James Kent, Commentaries on American Law 432(1826) (“The words of a statute are to be taken in theirnatural and ordinary signification and import; and iftechnical words are used, they are to be taken in atechnical sense.”). It also aligns with everyday usageof the word “because”. The American HeritageDictionary of the English Language, p. 159 (4th ed.2006); Webster’s Ninth Collegiate Dictionary, p. 139(1987). When one speaks of an action occurring“because of” another action, a direct cause and effectrelationship is presumed.

It is well settled that words should be interpretedconsistently to have the same meaning. Merrill Lynch,Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85-86(2006). And this principle is particularly important tolawyers representing employers because they mustinterpret a host of state and federal statutes governingemployment relationships, and establishing potentialcauses of action. If the same words are interpreteddifferently from one employment statute to another,neither in-house counsel for employers nor thoserepresenting them in litigation will be able to predicthow the courts will apply a particular provision. Such

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varying interpretations of the same languageundermine respect for the rule of law, and give rise topractical difficulties for those advising employers aboutpotential liability.

The framework presented in Gross requires aplaintiff suing under Title VII’s retaliation provision toprove that his charge, testimony, assistance, orparticipation in an investigation, proceeding, hearingor the like was the “but-for” cause of the allegedretaliatory action. To allow a Title VII retaliationclaim to proceed under a mixed-motives theory, as theFifth Circuit has in this case, Nassar v. University ofTexas Southwestern Medical Center, 674 F.3d 448, 454(5th Cir. 2012), results in a holding that directlycontradicts Congressional intent as interpreted by thisCourt in Gross. It is not sheer coincidence that the“because” language of Title VII’s retaliation provisionwithstood Congress’s 1991 amendments to thestatutory scheme. Congress made a deliberate choice toimpose a more stringent causation burden on plaintiffspursuing retaliation claims under Title VII than onplaintiffs pursuing discrimination claims under thesame statutory scheme. The Civil Rights Act of 1991,Pub. L. No. 102-166, 105 Stat. 1071 (1991), amendedthe 1964 version of the statute to establish a“motivating factor” test applicable to mixed-motivecases brought under Title VII’s discriminationprovision:

Except as otherwise provided in this subchapter,an unlawful employment practice is establishedwhen the complaining party demonstrates thatrace, color, religion, sex, or national origin wasa motivating factor for any employment

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practice, even though other factors alsomotivated the practice.

42 U.S.C. § 2000e-2(m) (emphasis added). However,the amendments left the Act’s retaliation provisionunchanged, preserving the original “because” language.

The legislative decision to adopt a motivating-factorcausation standard in the Title VII discriminationprovision represents a deliberate, policy-driven choiceto deviate from traditional, but-for causation principles.Congress explicitly enacted language with a muchlesser standard, “a motivating factor”, which was inturn interpreted by this Court to create liability inmixed motive cases. But Congress manifested nosimilar intent to tip the scales in favor of employeeswith respect to a diminished burden of proof forretaliation claims brought under Title VII. The factthat Congress amended the discrimination provisionwithout also amending the retaliation provision isextremely persuasive that the motivating-factorstandard was purposefully excluded. Where wordsdiffer, the Court presumes that “‘Congress actsintentionally and purposely in the disparate inclusionor exclusion.’” Burlington Northern and Santa Fe Ry.Co. v. White, 548 U.S. 53, 62-63 (2006), quotingRussello v. U.S., 464 U.S. 16, 23 (1983). Here, thedifferent language of the retaliation and discriminationprovisions reflects a legislative intent to imposedifferent causation standards. In short, Congressintended its words to make a legal difference.

A more stringent causation standard for retaliationclaims is entirely consistent with the purpose for whichit was created. Robinson v. Shell Oil Co., 519 U.S. 337,

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345 (2001) (noting that Title VII’s anti-retaliationprovision must be interpreted in accordance with TitleVII’s overall remedial purpose). While the substantiveprovisions of Title VII seek to eliminate unlawfuldiscrimination based on certain protected categories,the retaliation provision has a different objective: toprotect those who seek to enforce their primary rightsunder the statute. Id. (noting that “[m]aintainingunfettered access to statutory remedial mechanisms” is“a primary purpose of antiretaliation provisions[.]”).The retaliation provision is not intended to create abroad right of action in itself. Its inclusion in Title VIIserves primarily as a shield for aggrieved plaintiffsvoicing discriminatory practices. See Peterson v. UtahDep’t of Corr., 301 F.3d 1182, 1189 (10th Cir. 2002)(“The purpose of § 2000e-3(a) is to let employees feelfree to express condemnation of discrimination thatviolates Title VII.”); and McMenemy v. City ofRochester, 241 F.3d 279, 284 (2d Cir. 2001) (noting thatwithout the protections afforded by the anti-retaliationprovision, employers might be permitted todiscriminate against an employee because of anemployee’s past use of Title VII’s remedialmechanisms, which could significantly deter employeesfrom engaging in such proceedings). By “promisingpunishment for such retaliatory acts by the employer,”the retaliation provision strengthens “the statute’sultimate aim: protecting individuals against unlawfuldiscrimination.” James Concannon, Reprisal Revisited:Gross v. FBL Financial Services, Inc. and The End ofthe Mixed Motive Title VII Retaliation, 17 Tex. J. onC.L. & C.R. 43, 46 (Fall 2011). See also Burlington,supra, at 63 (“[t]he antiretaliation provision seeks tosecure [the] primary objective [of theantidiscrimination provision] by preventing an

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employer from interfering (through retaliation) with anemployee’s efforts to secure or advance enforcement ofthe Act’s basic guarantees.”). The Legislature thereforecarefully worded the retaliation provision consistentwith its intended purpose. Id. (“[t]here is strongreason to believe that Congress intended thedifferences that its language suggest, for the[discrimination and retaliation] provisions differ notonly in language but in purpose as well.”).

The Court has the opportunity to clear up theconfusion that has divided the federal appellate circuitsand apply the Gross Court’s analysis to Title VII’sretaliation provision. Under that framework, a plaintiffbringing suit under the retaliation provision mustprove that “but-for” his conduct, the retaliation wouldnot have occurred. This is the only interpretation thatwill give effect to the clear and unambiguous languageof the statute. Adopting a lesser standard will not onlyresult is a paradox that directly contradictsCongressional intent, it will also create an unworkabletest making it exceedingly difficult for defendants todefend against such retaliation claims.

II. The Motivating-Factor Standard CompromisesDefendants’ Ability to Erect a Defense andImposes Substantial Burdens on Defendants.

The legislative decision to require a showing of “but-for” causation in Title VII retaliation claims is deeplyrooted in traditional causation philosophy. The but-forcausation standard has long served as the preferredstandard in tort law. See W. Page Keeton et al.,Prosser and Keeton on the Law of Torts § 41, at 266(5th ed. 1984) (defining but-for causation as: “[t]he

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defendant’s conduct is a cause of the event if the eventwould not have occurred but for that conduct;conversely, the defendant’s conduct is not a cause of theevent, if the event would have occurred without it.”).Even though other causation standards have emergedover time, the but-for test remains the favoredapproach. See John D. Rue, Returning to the Roots ofthe Bramble Bush: The “But For” Test Regains Primacyin Causal Analysis in the American Law Institute’sProposed Restatement (Third) of Torts, 71 Fordham L.Rev. 2679 (2003). Indeed, unless specifically indicatedotherwise, “but-for causation is part of the plaintiff’sburden in all suits under federal law.” Fairley v.Andrews, 578 F.3d 518, 525-26 (7th Cir. 2009)(construing Gross).

A but-for causation standard appropriately accountsfor the complicated realities of workplace decision-making, balances the interests of the employer andemployee in litigation, and properly limits employerliability to situations where the retaliatory motiveactually has a demonstrably negative impact on theemployee. Replacing this causation standard with amotivating-factor standard would create such a low testthat employers defending against Title VII retaliationclaims can be expected to be held liable on manyoccasions when the claimed retaliatory motive hadlittle or no impact on the adverse employment decision.“‘Motivating factor’ appears to mean only that theprotected characteristic was real and present to helpexplain the employer’s decision, but such a factor neednot be significant, much less determinative.” MichaelJ. Zimmer, Chaos or Coherence: Individual DisparateTreatment Discrimination and the ADEA, 51 Mercer L.Rev. 693, n. 23 (2000). Thus, a plaintiff could prevail

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simply by showing proof that an improper motive wasone of multiple reasons for the employment action. Plaintiffs have “the option of not contesting thetruthfulness of the stated reason, but insteaddemonstrating that discrimination was also amotivating factor behind the adverse employmentaction.” Robert M. Weems, Selected Issues and Trendsin Civil Litigation in Mississippi Federal DistrictCourts, 77 Miss. L.J. 977, 1031 (2008). Defendants, onthe other hand, would face the difficulties associatedwith proving a negative – that they did not retaliate –in order to avoid liability and damages. This is anextremely difficult standard for employers, especiallywhen one considers that in most cases, an employer’sdecision is based on multiple factors. As Senator Casefamously noted during the debate over the Civil RightsAct of 1964, “If anyone ever had an action that wasmotivated by a single cause, he is a different kind ofanimal from any I know of.” 110 Cong. Rec. 13837-38(1964). See also David A. Cathcart & MarkSnyderman, The Civil Rights Act of 1991, SF41 ALI-ABA 391, 432 (2001) (noting that employment decisions“are almost always mixed-motive decisions turning onmany factors.”)

Given the many factors that can contribute to anyone employment decision, the legislative scheme optedfor clarity by employing the traditional “because”language which requires a showing of “but-for”causation in Title VII retaliation cases. Bright-linerules like this offer obvious benefits because they avoiddispute about whether something is inside of the line,which is “bright” or clearly established. That delicatebalance is hard to achieve with standards, which can beset too low and result in lots of weak claims, or set too

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high and result in violators of a statutory policy doingso with impunity. The legislature makes a policy choicewhen it selects a bright-line rule over a standard. Seee.g. Louis Kaplow, Rules versus standards: An economicanalysis, 42 Duke L.J. 557, 557 (1992); Kathleen M.Sullivan, The justices of rules and standards, 106 Harv.L.R. 22, 26 (1992). Congress made such a choice herewhen it employed the traditional language “because,”which requires a showing of “but-for” causation. Undersuch a policy, employers who engaged in an adverseaction directed at an employee “because of” hisexercising his or her Title VII rights, are to be heldliable. But one that may be irritated by exercise of TitleVII rights but who took action that would haveoccurred anyway, may not be held liable.

Disregarding the bright-line rule in favor of astandard will create grave difficulties for thebusinesses and individuals DRI’s members areregularly called upon to defend. Even where employerscomply with the law, the nature of motives and themotivating – factor causation standard will allowplaintiffs to defeat summary judgment motions inretaliation claims with relative ease:

While responsible employers will take steps toassure or encourage lawful motivation byparticipating individuals, it will often be possiblefor an aggrieved employee or applicant to findsomeone whose input in the process was in someway motivated by an impermissible factor – amuch lighter burden than demonstrating thatthe forbidden ground of decision was adetermining factor…Summary judgment will be

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less frequent because the plaintiff’s thresholdburden is so light.

David A. Cathcart, supra (emphasis in original). Because direct evidence is not required in order toobtain a mixed-motive jury instruction, Desert Palace,Inc. v. Costa, 539 U.S. 90, 92, 101-102 (2003), plaintiffscan avoid summary judgment simply by a showing ofcircumstantial evidence – an undemanding burden, tosay the least. See White v. Baxter Healthcare Corp., 533F.3d 381, 400 (6th Cir. 2008) (noting that “[t]his burdenof producing some evidence in support of a mixed-motive claim is not onerous and should precludesending the case to the jury only where the record isdevoid of evidence that could reasonably be construedto support the plaintiff’s claim.”). This means thatemployers will be forced to spend the resourcesnecessary to litigate a claim at trial, even where theevidence of retaliation is relatively weak. See, e.g.,Holcomb v. Iona College, 521 F.3d 130, 142 (2d Cir.2008) (vacating and remanding the district court’sgrant of summary judgment of plaintiff’s Title VII racediscrimination claim and holding that even though theplaintiff “has adduced little evidence to suggest that hewas terminated solely because his wife was black…heneeds only to prove that the decision was partly somotivated to prevail on the ultimate merits of hisclaim.”). Employers faced with this situation oftenchoose to settle to avoid the negative publicity of a trialor to save their scarce resources for more productiveactivities than litigating.

When the standard is lowered to allow for liabilityon the basis of a mixed motive, the scales will continueto tip in favor of plaintiffs at trial. To illustrate, take

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two simple retaliation jury instructions, one whichutilizes a “but-for” approach, and the other whichemploys a “motivating factor” standard:

Did plaintiff, P, establish by a preponderance ofthe evidence that defendant, D, retaliatedagainst him because P participated in aninvestigation, proceeding, or hearing?

Did plaintiff, P, establish by a preponderance ofthe evidence that his participation in aninvestigation, proceeding, or hearing was amotivating factor in the decision by defendant,D, to terminate him?

The latter instruction is more favorable to plaintiffs. Stated another way, plaintiffs who must show that theprotected characteristic was merely “a motivatingfactor” in the employer’s decision have a much easierburden than those who must satisfy the “but-for” test.Michael J. Zimmer, The Emerging Uniform Structureof Disparate Treatment Discrimination Litigation, 30Ga. L. Rev. 563, 607-08 (1996).

The Third Circuit witnessed this firsthand in theage discrimination context when a jury was given both“but-for” and “motivating factor” instructions in thesame case. Abrams v. Lightolier Inc., 50 F.3d 1204 (3dCir. 1995). Abrams was an age discrimination caseinvolving both state and federal claims whichproceeded to a jury trial. The jury was instructed that“Abrams had to show that age was the sole motivatingfactor for his discharge” in order to prevail on hisfederal age discrimination claim brought under theADEA. Id. at 1211 (emphasis in original). However, in

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contrast, the jury was instructed that it could find infavor of Abrams on his state-law age discriminationclaim by showing that age was “a determinative factor”in the discharge decision. Id. Not surprisingly, the juryfound that age was not the sole motivating factor forAbrams’ termination – thus rejecting his federal claim– but nevertheless concluded that age was adeterminative factor in his termination – thussubjecting the employer to back-pay, future losses, andpain and suffering damages under the state-lawdiscrimination act. The lax causation standard for thestate-law discrimination claim allowed the jury’sverdict to withstand an appeal, even over evidence thatAbrams’ termination followed a failure to memorializean oral modification of shipping rates with a thirdcompany, which resulted in litigation and cost Abrams’employer nearly one million dollars in settlement andattorney’s fees. Id. at 1210.

Application of a motivating-factor causationstandard can easily result in a windfall to plaintiffs. See Martin J. Katz, The Fundamental Incoherence ofTitle VII: Making Sense of Causation in DisparateTreatment Law, 94 Geo. L. J. 489, 512 (2006). Take, forexample, an employee who engaged in insubordinateconduct and was terminated. And assume that hisemployer harbored some retaliatory animus interminating the employee, but would have terminatedthe employee regardless based on his insubordinatebehavior. Under the “a motivating factor” standard,the employee may prevail in such a case, and theemployer could be ordered to reinstate the employee orpay compensatory damage, even though the employee’sown misconduct was the reason he was terminated.

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The insubordinate employee is therefore placed in abetter position than he would otherwise have been. Id.

Employers, on the other hand, are often placed in alose/lose situation. They must choose to either retainthe employee who has violated their legitimate rulesthus undercutting their enforcement and legitimacy inthe workplace, or chance the cost and uncertainties oflitigation under a framework that permits an employeeto establish a retaliation claim without showing adirect causal connection between his protected statusand the injury suffered. For many defendants, theformer presents the only economically viable option.This is particularly true where Title VII allowsprevailing plaintiffs to recover statutory attorney’s feeswith relative ease. 42 U.S.C. § 2000e-5(k) (“[i]n anaction or proceeding under this subchapter the court inits discretion, may allow the prevailing party…areasonable attorneys’ fee (including expert fees) as partof the costs[.]” In contrast, it is exceedingly difficult for“prevailing defendants,” to recoup their attorney’s fees. Compare Newman v. Piggie Park, Enterprises, Inc., 390U.S. 400, 402 (1968) (noting that prevailing plaintiffs“should ordinarily recover an attorney’s fee unlessspecial circumstances would render such an awardunjust.”), with Christianburg Garment Co. v. EEOC,434 U.S. 412, 422 (1978) (holding that prevailingdefendants should receive attorney fees only if theplaintiff’s action “was frivolous, unreasonable, orgroundless[.]”). The threat of an adverse jury verdictand attorney’s fees also places intense pressure ondefendants to settle even meritless retaliation claims.

With retaliation claims on the rise, the economicburden on defendants will likely become even more

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onerous. Wayne N. Outten et al., When Your EmployerThinks You Acted Disloyally: The Guarantees andUncertainties of Retaliation Law, 693 Prac. L. Inst.-Litig. 151, 153 (2003) (noting that “In part due to thesuccess rate of retaliation claims before juries, moreand more plaintiffs are adding retaliation to theirdiscrimination and whistleblower claims.”). In fiscalyear 2012 alone, Title VII retaliation chargescomprised nearly 1/3 of all charges filed with the U.S.Equal Employment Opportunity Commission. U.S.Equal Employment Opportunity Commission, ChargeStatistics, FY 1997 Through FY 2012, available athttp://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (last visited February 28, 2013) (reporting thatof the 99,412 total charges filed in FY 2012, 31,208 ofthem, or 31.4%, were retaliation charges broughtpursuant to Title VII). Given the consistent upwardtrend in Title VII retaliation charges over the pastdecade (id.), it is likely that this number will increasein coming years.

Amicus curiae DRI does not dispute thateliminating retaliation in the workplace is a laudablegoal. But this goal must be balanced with equallyimportant goals, including ensuring that employers arenot restricted in their decision-making processesbecause of litigation fears or unnecessarily burdenedwith the costs of defending or settling meritlesslawsuits based on insufficient evidence of retaliation. All of these important considerations, and the interestsof both employers and employees, should inform anydiscussion of the appropriate burden of proof in aretaliation claim brought under Title VII. Congressbalanced these competing interests when it enacted aretaliation provision that requires a plaintiff to show

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that the retaliation occurred “because” he or sheengaged in protected conduct. The Court must givecredence to the legislature’s word choice, just as it didin Gross when it held that “because” as used in theADEA requires a showing of “but-for” causation. Gross,557 U.S. 176-78. Failure to similarly do so in the TitleVII retaliation context will have a harmful impact onthe businesses and individuals DRI’s members areregularly called upon to defend.

CONCLUSION

The judgment of the Fifth Circuit should bereversed.

Respectfully submitted,

MARY MASSARON ROSSPresident of DRI

Counsel of RecordHILARY A. BALLENTINEPLUNKETT COONEY38505 Woodward Ave., Suite 2000Bloomfield Hills, MI 48304(313) 983-4801mmassaron@plunkettcooney.com

Counsel for Amicus Curiae DRI – The Voice of the Defense Bar