by Vincent A. Toreno, Esq.

Recently, the United States Supreme Court issued a decision that makes it harder for an employee to prove a Title VII retaliation case against his/her employer. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court held that the plaintiff must now show that she would not have suffered the adverse employment action at issue “but for” her protected activity, e.g., filing a harassment claim. Prior to this ruling, a plaintiff only had to prove that the protected activity was a “motivating factor” in bringing about the adverse action. This important decision is considered a victory for employers because the “but for” burden of proof will be much more difficult for employees to achieve. While this ruling may not reduce the number of retaliation claims filed, it may make it easier for employers to have the cases dismissed by the court prior to trial. It should be noted that the “but for” standard of causation in Nassar appears to apply only to Title VII retaliation cases. In a Title VII discrimination case based on race, gender, etc., the employee’s burden of proof remains unchanged; the employee only needs to show that race or gender was a “motivating factor” in the adverse employment decision.