Master The Supreme Court held that Title VII retaliation claims require proof of but-for causation, not merely that retaliation was a motivating factor. with this comprehensive case brief.
University of Texas Southwestern Medical Center v. Nassar is a landmark Title VII decision that reshaped the causation standard for retaliation claims. Before Nassar, many courts allowed plaintiffs to prevail in retaliation cases under a more forgiving mixed-motive framework—requiring only that retaliatory animus be one motivating factor in the employer's decision. Nassar rejected that approach, holding instead that plaintiffs must prove but-for causation for retaliation under Title VII's § 704(a), even though Congress expressly authorized a mixed-motive path for status-based discrimination claims (race, color, religion, sex, or national origin) in § 703(m).
Nassar's significance is both doctrinal and practical. Doctrinally, it clarifies that different provisions within Title VII can carry different causation standards, depending on statutory text and structure. Practically, it raised the bar for retaliation plaintiffs, affecting summary judgment practice, jury instructions, and litigation strategy. Alongside Gross v. FBL Financial Services, Inc. (ADEA) and the 1991 Civil Rights Act, Nassar is essential reading for understanding causation in employment discrimination law.
570 U.S. 338 (2013) (Supreme Court of the United States)
Dr. Naiel Nassar, a physician of Middle Eastern descent, held a faculty appointment at the University of Texas Southwestern Medical Center (UTSW) and worked as a staff physician at Parkland Memorial Hospital pursuant to an affiliation agreement under which Parkland generally hired UTSW faculty for physician positions. Nassar alleged his immediate supervisor, Dr. Beth Levine, made derogatory comments about his ethnicity and religion and otherwise harassed him. Seeking to remain at Parkland without remaining on UTSW's faculty, Nassar negotiated a staff-physician job directly with Parkland. In July 2006, he resigned his faculty post and sent a letter to UTSW leadership alleging that Levine had discriminated against and harassed him. After learning that Parkland had extended Nassar the offer notwithstanding the affiliation arrangement, the Chair of UTSW's Department of Medicine objected to Parkland's CEO that the offer violated the affiliation agreement. Parkland then rescinded the job offer. Nassar sued UTSW in federal court, alleging (1) status-based discrimination culminating in constructive discharge under Title VII § 703(a) and (2) retaliation under § 704(a) for complaining about discrimination. A jury found for Nassar on both claims, and the district court entered judgment. On appeal, the Fifth Circuit vacated the constructive discharge verdict but affirmed the retaliation judgment, applying a mixed-motive causation standard. The Supreme Court granted certiorari to resolve the proper causation standard for Title VII retaliation claims.
Does Title VII's anti-retaliation provision, 42 U.S.C. § 2000e–3(a), require a plaintiff to prove that protected activity was the but-for cause of an adverse employment action, or is it sufficient to show that retaliation was a motivating factor in the decision?
Under Title VII, retaliation claims brought pursuant to § 704(a), 42 U.S.C. § 2000e–3(a), require proof of but-for causation: the plaintiff must show that the adverse employment action would not have occurred in the absence of the employer's retaliatory motive. The statutory mixed-motive framework codified in § 703(m), 42 U.S.C. § 2000e–2(m)—permitting liability where a protected characteristic is a motivating factor—applies only to status-based discrimination claims (race, color, religion, sex, national origin) and does not govern retaliation. See also the default tort-law principle that "because of" denotes but-for causation and Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009).
Yes. Title VII retaliation claims under § 704(a) require but-for causation; the mixed-motive standard in § 703(m) does not apply to retaliation. The Fifth Circuit's use of the motivating-factor standard for retaliation was error. The judgment was vacated and the case remanded for further proceedings under the correct standard.
The Court, in a 5–4 opinion by Justice Kennedy, grounded its analysis in statutory text, structure, and background tort principles. First, the Court emphasized that causation language such as "because of" ordinarily imports a but-for requirement absent contrary indication from Congress. Building on Gross v. FBL Financial Services, Inc., which interpreted similar text in the ADEA to require but-for causation, the Court concluded that Title VII's anti-retaliation provision—§ 704(a)—likewise demands but-for causation because it proscribes discrimination "because" an employee engaged in protected activity. Second, the Court analyzed the 1991 Civil Rights Act. Congress added § 703(m), expressly allowing motivating-factor liability for status-based discrimination—not retaliation—and placed corresponding remedial limitations in § 706(g)(2)(B). The omission of retaliation from § 703(m) was dispositive for the majority: when Congress wanted to authorize mixed-motive liability, it said so, and it did not do so for retaliation claims. The Court rejected the argument that retaliation is subsumed within "discrimination" referenced in § 703(m), reasoning that Title VII's structure treats status-based discrimination and retaliation in separate sections, using different textual formulations, and Congress's selective amendment demonstrated an intentional distinction. Third, the Court noted policy considerations. Retaliation claims are common and, in the Court's view, relatively easy to assert. Adopting a less rigorous causation standard, the majority reasoned, would expose employers to increased frivolous litigation and could "unduly constrict" the ability to make legitimate personnel decisions. Although not the primary driver of the holding, these practical concerns supported adhering to the stricter but-for standard. Justice Ginsburg, joined by three Justices, dissented. She argued that Title VII's text and history (including Price Waterhouse's mixed-motive framework) supported applying the motivating-factor standard to retaliation as well as status-based discrimination. She cautioned that a stricter causation rule would deter employees from reporting discrimination and urged Congress to correct the Court's interpretation. The majority, however, found the statute's text and structure decisive and remanded for application of the but-for standard.
Nassar is a cornerstone Title VII case delineating two distinct causation regimes: mixed-motive for status-based discrimination (§ 703(m)) and but-for for retaliation (§ 704(a)). For litigators, it affects pleading, discovery, and summary judgment strategy; at trial, it requires jury instructions and verdict forms that ask whether retaliation was the but-for cause of the adverse action. For employers and HR professionals, Nassar underscores the importance of contemporaneous, well-documented, nonretaliatory reasons for employment decisions taken after protected activity. For law students, Nassar is essential for understanding how statutory text, structure, and default tort principles interact to produce different causation standards within the same overarching statute.
Status-based discrimination claims under Title VII (race, color, religion, sex, national origin) can proceed under a mixed-motive theory pursuant to § 703(m)—the protected trait need only be a motivating factor. Retaliation claims under § 704(a) must meet the stricter but-for causation standard: the plaintiff must prove the adverse action would not have occurred absent retaliatory animus. Mixed-motive does not apply to retaliation.
McDonnell Douglas remains a permissible method for proving retaliation with circumstantial evidence. A plaintiff may establish a prima facie case, the employer then offers a legitimate, nonretaliatory reason, and the plaintiff must show pretext. After Nassar, however, the plaintiff's ultimate burden at trial (and on summary judgment when the record is fixed) is to prove but-for causation—i.e., that retaliatory motive was the determinative cause of the adverse action.
Both direct and circumstantial evidence can suffice. Common forms include close temporal proximity plus additional indicia (e.g., shifting or inconsistent explanations, comparator evidence, deviations from policy, unusually severe discipline, decisionmaker statements evincing retaliatory animus), documentation showing knowledge of the protected activity, and evidence that the stated reasons are pretextual. Temporal proximity alone typically supports a prima facie case but often is insufficient by itself to prove but-for causation.
No. Congress codified a version of mixed-motive liability for status-based discrimination in § 703(m) of Title VII after Price Waterhouse. Nassar holds that Congress did not extend that framework to retaliation. Thus, mixed-motive remains available for status-based discrimination but not for retaliation.
Instructions should ask the jury to determine whether the plaintiff engaged in protected activity, suffered a materially adverse action, and whether retaliation was the but-for cause of that action. The jury should be told that it is not enough that retaliation was a motivating factor; it must have been the determining cause without which the adverse action would not have occurred.
Yes. Cat's paw liability remains viable, but after Nassar the plaintiff must show that the biased subordinate's retaliatory animus was a but-for cause of the ultimate decision—i.e., that the decisionmaker relied on, or was influenced by, the biased input in a way that made the retaliatory motive determinative of the adverse action.
Nassar clarifies that Title VII's anti-retaliation provision is governed by a traditional but-for causation standard, not the mixed-motive framework available for status-based discrimination. The Court's textual and structural analysis—highlighting Congress's selective extension of mixed-motive liability—cements the principle that different provisions within the same statute can carry distinct causation rules.
For students and practitioners, the case underscores how statutory wording, default tort principles, and legislative amendments interact to shape evidentiary burdens. In practice, Nassar raises the bar for retaliation plaintiffs and places renewed emphasis on robust employer documentation and careful jury instructions keyed to but-for causation.
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