Tagged: but-for causation

“It is clear that the Nassar ‘but for’ causation standard signals a victory to employers and will alter the future of retaliation claims.”

Source: Michael Kraemer. “Retaliation Lawsuits Under Title VII Post Nassar.” Law.com. December 23, 2014.  http://www.law.com/sites/michaelkraemer/2014/12/23/retaliation-lawsuits-under-title-vii-post-nassar/#ixzz3OuYtNuRd.

“In 1989, the Court interpreted Title VII to require a plaintiff to establish that a protected trait was a substantial factor or motivating part in a decision. Price Waterhouse v. Hopkins, 490 U.S. 228, 240-41, 250 (1989) (plurality); id. at 259 (White, J., concurring) (using a substantial factor analysis); id.at 265 (O’Connor, J., concurring) (using a substantial factor analysis). The Court held that an employer could avoid liability by establishing that it would have made the same decision absent consideration of the protected trait. Id. at 258 (plurality); id. at 259-60 (White, J., concurring); id. at 267 (O’Connor, J., concurring). In 1991, Congress amended Title VII by codifying the motivating factor standard, but altering an employer’s affirmative defense to liability. If the employer established the same decision defense, it would not escape liability, but would face a limited scope of damages. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 185 (2009) (Stevens, J., dissenting).”

Source: Sandra F. Sperino and Suja A. Thomas. Fakers and Floodgates. Stanford Journal of Civil Rights & Civil Liberties. pg. 226, f. 17. June 2014.

“Today, the Supreme Court continued that tradition in a pair of five-to-four decisions narrowly construing the scope of Title VII’s retaliation and employer liability rules. In University of Texas Southwestern Medical Center v. Nassar, the Court strictly interpreted a statute that Congress enacted to overrule a prior Supreme Court decision, holding retaliation claims to a stricter standard of proof than other forms of discrimination claims. In Vance v. Ball State University, the same majority narrowly defined who counts as a “supervisor” whose discrimination is automatically attributed to an employer. Justice Ginsburg, writing for the Court’s four more liberal Justices, invoked the history of congressional overruling of the Court’s employment discrimination decisions to call upon Congress to once again reverse both decisions issued today.”

There goes that word (“narrowed”) again! Smh! I’m curious to know since 2000, how many employment discrimination and civil rights cases has the Supreme Court ruled in favor of the employee? Given that majority of the justices on the Supreme Court were appointed by Republican Presidents, this  5-4 outcome in favor of employers and corporations will continue to persist in employment discrimination and civil rights related cases until the ideological makeup of the court changes. No matter what the Civil Rights Act of 1964 states or what one argues, the majority white justices always find a way to narrowly apply the statute to the facts of the case —  to the point that over time, the case law becomes ineffective in combating more institutional, systemic and insidious forms of racism and discrimination in the workplace. This is not accidental. Ultimately, the SCOTUS’s decisions in these cases are predetermined due to their overall ignorance and hostility to the civil rights laws of this country. How can this problem be corrected?

Source: Kevin Russell. Court Rules For Employers in Two Employment Discrimination Cases. June 24, 2013. http://www.scotusblog.com/2013/06/court-rules-for-employers-in-two-employment-discrimination-cases/.