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University of Texas Southwestern Medical Center v. Nassar

June 24, 2013

UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, PETITIONER
v.
NAIEL NASSAR



ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Court Below: 674 F.3d 448

SYLLABUS BY THE COURT

OCTOBER TERM, 2012

Argued April 24, 2013

Petitioner, a university medical center (University) that is part of the University of Texas system, specializes in medical education. It has an affiliation agreement with Parkland Memorial Hospital (Hospital), which requires the Hospital to offer vacant staff physician posts to University faculty members. Respondent, a physician of Middle Eastern descent who was both a University faculty member and a Hospital staff physician, claimed that Dr. Levine, one of his supervisors at the University, was biased against him on account of his religion and ethnic heritage. He complained to Dr. Fitz, Levine's supervisor. But after he arranged to continue working at the Hospital without also being on the University's faculty, he resigned his teaching post and sent a letter to Fitz and others, stating that he was leaving because of Levine's harassment. Fitz, upset at Levine's public humiliation and wanting public exoneration for her, objected to the Hospital's job offer, which was then withdrawn. Respondent filed suit, alleging two discrete Title VII violations. First, he alleged that Levine's racially and religiously motivated harassment had resulted in his constructive discharge from the University, in violation of 42 U. S. C. §2000e--2(a), which prohibits an employer from discriminating against an employee "because of such individual's race, color, religion, sex, and national origin" (referred to here as status-based discrimination). Second, he claimed that Fitz's efforts to prevent the Hospital from hiring him were in retaliation for complaining about Levine's harassment, in violation of §2000e--3(a), which prohibits employer retaliation "because [an employee] has opposed . . . an unlawful employment practice . . . or . . . made a [Title VII] charge." The jury found for respondent on both claims. The Fifth Circuit vacated as to the constructive-discharge claim, but affirmed as to the retaliation finding on the theory that retaliation claims brought under §2000e--3(a)-like §2000e--2(a) status-based claims-require only a showing that retaliation was a motivating factor for the adverse employment action, not its but-for cause, see §2000e--2(m). And it found that the evidence supported a finding that Fitz was motivated, at least in part, to retaliate against respondent for his complaints about Levine.

Held: Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e--2(m). Pp. 5--23.

(a) In defining the proper causation standard for Title VII retaliation claims, it is presumed that Congress incorporated tort law's causation in fact standard-i.e., proof that the defendant's conduct did in fact cause the plaintiff's injury-absent an indication to the contrary in the statute itself. See Meyer v. Holley, 537 U. S. 280, 285. An employee alleging status-based discrimination under §2000e--2 need not show "but-for" causation. It suffices instead to show that the motive to discriminate was one of the employer's motives, even if the employer also had other, lawful motives for the decision. This principle is the result of Price Waterhouse v. Hopkins, 490 U. S. 228, and the ensuing Civil Rights Act of 1991 (1991 Act), which substituted a new burden-shifting framework for the one endorsed by Price Waterhouse. As relevant here, that Act added a new subsection to §2000e--2, providing that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice," §2000e--2(m).

Also relevant here is this Court's decision in Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176, which interprets the Age Discrimination in Employment Act of 1967 (ADEA) phrase "because of . . . age," 29 U. S. C. §623(a)(1). Gross holds two insights that inform the analysis of this case. The first is textual and concerns the proper interpretation of the term "because" as it relates to the principles of causation underlying both §623(a) and §2000e--3(a). The second is the significance of Congress' structural choices in both Title VII itself and the 1991 Act. Pp. 5--11.

(b) Title VII's antiretaliation provision appears in a different section from its status-based discrimination ban. And, like §623(a)(1), the ADEA provision in Gross, §2000e--3(a) makes it unlawful for an employer to take adverse employment action against an employee "because" of certain criteria. Given the lack of any meaningful textual difference between §2000e--3(a) and §623(a)(1), the proper conclusion is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action. Respondent and the United States maintain that §2000e--2(m)'s motivating-factor test applies, but that reading is flawed. First, it is inconsistent with the provision's plain language, which addresses only race, color, religion, sex, and national origin discrimination and says nothing about retaliation. Second, their reading is inconsistent with the statute's design and structure. Congress inserted the motivating-factor provision as a subsection within §2000e--2, which deals only with status-based discrimination. The conclusion that Congress acted deliberately in omitting retaliation claims from §2000--2(m) is reinforced by the fact that another part of the 1991 Act, §109, expressly refers to all unlawful employment actions. See EEOC v. Arabian American Oil Co., 499 U. S. 244, 256. Third, the cases they rely on, which state the general proposition that Congress' enactment of a broadly phrased antidiscrimination statute may signal a concomitant intent to ban retaliation against individuals who oppose that discrimination, see, e.g., CBOCS West, Inc. v. Humphries, 553 U. S. 442, 452--453; Gómez-Pérez v. Potter, 553 U. S. 474, do not support the quite different rule that every reference to race, color, creed, sex, or nationality in an antidiscrimination statute is to be treated as a synonym for "retaliation," especially in a precise, complex, and exhaustive statute like Title VII. The Americans with Disabilities Act of 1990, which contains seven paragraphs of detailed description of the practices constituting prohibited discrimination, as well as an express antiretaliation provision, and which was passed only a year before §2000e--2(m)'s enactment, shows that when Congress elected to address retaliation as part of a detailed statutory scheme, it did so clearly. Pp. 11--17.

(c) The proper interpretation and implementation of §2000e--3(a) and its causation standard are of central importance to the fair and responsible allocation of resources in the judicial and litigation systems, particularly since retaliation claims are being made with ever-increasing frequency. Lessening the causation standard could also contribute to the filing of frivolous claims, siphoning resources from efforts by employers, agencies, and courts to combat workplace harassment. Pp. 18--20.

(d) Respondent and the Government argue that their view would be consistent with longstanding agency views contained in an Equal Employment Opportunity Commission guidance manual, but the manual's explanations for its views lack the persuasive force that is a necessary precondition to deference under Skidmore v. Swift & Co., 323 U. S. 134, 140. Respondent's final argument-that if §2000e-- 2(m) does not control, then the Price Waterhouse standard should-is foreclosed by the 1991 Act's amendments to Title VII, which displaced the Price Waterhouse framework. Pp. 20--23.

674 F. 3d 448, vacated and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

The opinion of the court was delivered by: Justice Kennedy

570 U. S. ____ (2013)

When the law grants persons the right to compensation for injury from wrongful conduct, there must be some demonstrated connection, some link, between the injury sustained and the wrong alleged. The requisite relation between prohibited conduct and compensable injury is governed by the principles of causation, a subject most often arising in elaborating the law of torts. This case requires the Court to define those rules in the context of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., which provides remedies to employees for injuries related to discriminatory conduct and associated wrongs by employers.

Title VII is central to the federal policy of prohibiting wrongful discrimination in the Nation's workplaces and in all sectors of economic endeavor. This opinion discusses the causation rules for two categories of wrongful employer conduct prohibited by Title VII. The first type is called, for purposes of this opinion, status-based discrimination. The term is used here to refer to basic workplace protection such as prohibitions against employer discrimination on the basis of race, color, religion, sex, or national origin, in hiring, firing, salary structure, promotion and the like. See §2000e--2(a). The second type of conduct is employer retaliation on account of an employee's having opposed, complained of, or sought remedies for, unlawful workplace discrimination. See §2000e--3(a).

An employee who alleges status-based discrimination under Title VII need not show that the causal link between injury and wrong is so close that the injury would not have occurred but for the act. So-called but-for causation is not the test. It suffices instead to show that the motive to discriminate was one of the employer's motives, even if the employer also had other, lawful motives that were causative in the employer's decision. This principle is the result of an earlier case from this Court, Price Waterhouse v. Hopkins, 490 U. S. 228 (1989), and an ensuing statutory amendment by Congress that codified in part and abrogated in part the holding in Price Waterhouse, see §§2000e--2(m), 2000e--5(g)(2)(B). The question the Court must answer here is whether that lessened causation standard is applicable to claims of unlawful employer retaliation under §2000e--3(a).

Although the Court has not addressed the question of the causation showing required to establish liability for a Title VII retaliation claim, it has addressed the issue of causation in general in a case involving employer discrimination under a separate but related statute, the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §623. See Gross v. FBL Financial Services, Inc., 557 U. S. 167 (2009). In Gross, the Court concluded that the ADEA requires proof that the prohibited criterion was the but-for cause of the prohibited conduct. The holding and analysis of that decision are instructive here.

I.

Petitioner, the University of Texas Southwestern Medical Center (University), is an academic institution within the University of Texas system. The University specializes in medical education for aspiring physicians, health professionals, and scientists. Over the years, the University has affiliated itself with a number of healthcare facilities including, as relevant in this case, Parkland Memorial Hospital (Hospital). As provided in its affiliation agreement with the University, the Hospital permits the University's students to gain clinical experience working in its facilities. The agreement also requires the Hospital to offer empty staff physician posts to the University's faculty members, see App. 361--362, 366, and, accordingly, most of the staff physician positions at the Hospital are filled by those faculty members.

Respondent is a medical doctor of Middle Eastern descent who specializes in internal medicine and infectious diseases. In 1995, he was hired to work both as a member of the University's faculty and a staff physician at the Hospital. He left both positions in 1998 for additional medical education and then returned in 2001 as an assistant professor at the University and, once again, as a physician at the Hospital.

In 2004, Dr. Beth Levine was hired as the University's Chief of Infectious Disease Medicine. In that position Levine became respondent's ultimate (though not direct) superior. Respondent alleged that Levine was biased against him on account of his religion and ethnic heritage, a bias manifested by undeserved scrutiny of his billing practices and productivity, as well as comments that " 'Middle Easterners are lazy.' " 674 F. 3d 448, 450 (CA5 2012). On different occasions during his employment, respondent met with Dr. Gregory Fitz, the University's Chair of Internal Medicine and Levine's supervisor, to complain about Levine's alleged harassment. Despite obtaining a promotion with Levine's assistance in 2006, respondent continued to believe that she was biased against him. So he tried to arrange to continue working at the Hospital without also being on the University's faculty. After preliminary negotiations with the Hospital suggested this might be possible, respondent resigned his teaching post in July 2006 and sent a letter to Dr. Fitz (among others), in which he stated that the reason for his departure was harassment by Levine. That harassment, he asserted, " 'stems from . . . religious, racial and cultural bias against Arabs and Muslims.' " Id., at 451. After reading that letter, Dr. Fitz expressed consternation at respondent's accusations, saying that Levine had been "publicly humiliated by th[e] letter" and that it was "very important that she be publicly exonerated." App. 41.

Meanwhile, the Hospital had offered respondent a job as a staff physician, as it had indicated it would. On learning of that offer, Dr. Fitz protested to the Hospital, asserting that the offer was inconsistent with the affiliation agree-ment's requirement that all staff physicians also be members of the University faculty. The Hospital then withdrew its offer.

After exhausting his administrative remedies, respondent filed this Title VII suit in the United States District Court for the Northern District of Texas. He alleged two discrete violations of Title VII. The first was a status-based discrimination claim under §2000e--2(a). Respondent alleged that Dr. Levine's racially and religiously motivated harassment had resulted in his constructive discharge from the University. Respondent's second claim was that Dr. Fitz's efforts to prevent the Hospital from hiring him were in retaliation for complaining about Dr. Levine's harassment, in violation of §2000e--3(a). 674 F. 3d, at 452. The jury found for respondent on both claims. It awarded him over $400,000 in backpay and more than $3 million in compensatory damages. The District Court later reduced the compensatory damages award to $300,000.

On appeal, the Court of Appeals for the Fifth Circuit affirmed in part and vacated in part. The court first concluded that respondent had submitted insufficient evidence in support of his constructive-discharge claim, so it vacated that portion of the jury's verdict. The court affirmed as to the retaliation finding, however, on the theory that retaliation claims brought under §2000e--3(a)-like claims of status-based discrimination under §2000e--2(a)- require only a showing that retaliation was a motivating factor for the adverse employment action, rather than its but-for cause. See id., at 454, n. 16 (citing Smith v. Xerox Corp., 602 F. 3d 320, 330 (CA5 2010)). It further held that the evidence supported a finding that Dr. Fitz was motivated, at least in part, to retaliate against respondent for his complaints against Levine. The Court of Appeals then remanded for a redetermination of damages in light of its decision to vacate the constructive-discharge verdict.

Four judges dissented from the court's decision not to rehear the case en banc, arguing that the Circuit's application of the motivating-factor standard to retaliation cases was "an erroneous interpretation of [Title VII] and controlling caselaw" and should be overruled en banc. 688 F. 3d 211, 213--214 (CA5 2012) (Smith, J., dissenting from denial of rehearing en banc).

Certiorari was granted. 568 U. S. ___ (2013).

II.

A.

This case requires the Court to define the proper standard of causation for Title VII retaliation claims. Causation in fact-i.e., proof that the defendant's conduct did in fact cause the plaintiff 's injury-is a standard requirement of any tort claim, see Restatement of Torts §9 (1934) (definition of "legal cause"); §431, Comment a (same); §279, and Comment c (intentional infliction of physical harm); §280 (other intentional torts); §281(c) (negligence). This includes federal statutory claims of workplace discrimination. Hazen Paper Co. v. Biggins, 507 U. S. 604, 610 (1993) (In intentional-discrimination cases, "liability depends on whether the protected trait" "actually motivated the employer's decision" and "had a determinative influence on the outcome"); Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, 711 (1978) (explaining that the "simple test" for determining a discriminatory employment practice is "whether the evidence shows treatment of a person in a manner which but for that person's sex would be different" (internal quotation marks omitted)).

In the usual course, this standard requires the plaintiff to show "that the harm would not have occurred" in the absence of-that is, but for-the defendant's conduct. Restatement of Torts §431, Comment a (negligence); §432(1), and Comment a (same); see §279, and Comment c (intentional infliction of bodily harm); §280 (other intentional torts); Restatement (Third) of Torts: Liability for Physical and Emotional Harm §27, and Comment b (2010) (noting the existence of an exception for cases where an injured party can prove the existence of multiple, independently sufficient factual causes, but observing that "cases invoking the concept are rare"). See also Restatement (Second) of Torts §432(1) (1963 and 1964) (negligence claims); §870, Comment l (intentional injury to another); cf. §435a, and Comment a (legal cause for intentional harm). It is thus textbook tort law that an action "is not regarded as a cause of an event if the particular event would have occurred without it." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984). This, then, is the background against which Congress legislated in enacting Title VII, and these are the default rules it is presumed to have incorporated, absent an indication to the contrary in the statute itself. See Meyer v. Holley, 537 U. S. 280, 285 (2003); Carey v. Piphus, 435 U. S. 247, 257--258 (1978).

B.

Since the statute's passage in 1964, it has prohibited employers from discriminating against their employees on any of seven specified criteria. Five of them-race, color, religion, sex, and national origin-are personal characteristics and are set forth in §2000e--2. (As noted at the outset, discrimination based on these five characteristics is called status-based discrimination in this opinion.) And then there is a point of great import for this case: The two remaining categories of wrongful employer conduct-the employee's opposition to employment discrimination, and the employee's submission of or support for a complaint that alleges employment discrimination-are not wrongs based on personal traits but rather types of protected employee conduct. These latter two categories are covered by a separate, subsequent section of Title VII, §2000e--3(a).

Under the status-based discrimination provision, it is an "unlawful employment practice" for an employer "to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin." §2000e--2(a). In its 1989 decision in Price Waterhouse, the Court sought to explain the causation standard imposed by this language. It addressed in particular what it means for an action to be taken "because of " an individual's race, religion, or nationality. Although no opinion in that case commanded a majority, six Justices did agree that a plaintiff could prevail on a claim of status-based discrimination if he or she could show that one of the prohibited traits was a "motivating" or "substantial" factor in the employ-er's decision. 490 U. S., at 258 (plurality opinion); id., at 259 (White, J., concurring in judgment); id., at 276 (O'Connor, J., concurring in judgment). If the plaintiff made that showing, the burden of persuasion would shift to the employer, which could escape liability if it could prove that it would have taken the same employment action in the absence of all discriminatory animus. Id., at 258 (plurality opinion); id., at 259--260 (opinion of White, J.); id., at 276--277 (opinion of O'Connor, J.). In other words, the employer had to show that a discriminatory motive was not the but-for cause of the adverse employment action.

Two years later, Congress passed the Civil Rights Act of 1991 (1991 Act), 105 Stat. 1071. This statute (which had many other provisions) codified the burden-shifting and lessened-causation framework of Price Waterhouse in part but also rejected it to a substantial degree. The legislation first added a new subsection to the end of §2000e--2, i.e., Title VII's principal ban on status-based discrimination. See §107(a), 105 Stat. 1075. The new provision, §2000e-- 2(m), states:

"[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."

This, of course, is a lessened causation standard.

The 1991 Act also abrogated a portion of Price Waterhouse's framework by removing the employer's ability to defeat liability once a plaintiff proved the existence of an impermissible motivating factor. See Gross, 557 U. S., at 178, n. 5. In its place, Congress enacted §2000e--5(g)(2), which provides:

"(B) On a claim in which an individual proves a violation under section 2000e--2(m) of this title and [the employer] demonstrates that [it] would have taken the same action in the absence of the impermissible motivating factor, the court-

"(i) may grant declaratory relief, injunctive relief . . . and [limited] attorney's fees and costs . . . ; and

"(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment . . . ."

So, in short, the 1991 Act substituted a new burden-shifting framework for the one endorsed by Price Waterhouse. Under that new regime, a plaintiff could obtain declaratory relief, attorney's fees and costs, and some forms of injunctive relief based solely on proof that race, color, religion, sex, or nationality was a motivating factor in the employment action; but the employer's proof that it would still have taken the same employment action would save it from monetary damages and a reinstatement order. See Gross, 557 U. S., at 178, n. 5; see also id., at 175, n. 2, 177, n. 3.

After Price Waterhouse and the 1991 Act, considerable time elapsed before the Court returned again to the meaning of "because" and the problem of causation. This time it arose in the context of a different, yet similar statute, the ADEA, 29 U. S. C. §623(a). See Gross, supra. Much like the Title VII statute in Price Waterhouse, the relevant portion of the ADEA provided that " '[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.' " 557 U. S., at 176 (quoting §623(a)(1); emphasis and ellipsis in original).

Concentrating first and foremost on the meaning of the phrase " 'because of . . . age,' " the Court in Gross explained that the ordinary meaning of " 'because of ' " is " 'by reason of ' " or " 'on account of.' " Id., at 176 (citing 1 Webster's Third New International Dictionary 194 (1966); 1 Oxford English Dictionary 746 (1933); The Random House Dictionary of the English Language 132 (1966); emphasis in original). Thus, the "requirement that an employer took adverse action 'because of ' age [meant] that age was the 'reason' that the employer decided to act," or, in other words, that "age was the 'but-for' cause of the employer's adverse decision." 557 U. S., at 176. See also Safeco Ins. Co. of America v. Burr, 551 U. S. 47, 63--64, and n. 14 (2007) (noting that "because of " means "based on" and that " 'based on' indicates a but-for causal relationship"); Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 265--266 (1992) (equating "by reason of " with " 'but for' cause").

In the course of approving this construction, Gross declined to adopt the interpretation endorsed by the plurality and concurring opinions in Price Waterhouse. Noting that "the ADEA must be 'read . . . the way Congress wrote it,' " 557 U. S., at 179 (quoting Meacham v. Knolls Atomic Power Laboratory, 554 U. S. 84, 102 (2008)), the Court concluded that "the textual differences between Title VII and the ADEA" "prevent[ed] us from applying Price Waterhouse . . . to federal age discrimination claims," 557 U. S., at 175, n. 2. In particular, the Court stressed the congressional choice not to add a provision like §2000e--2(m) to the ADEA despite making numerous other changes to the latter statute in the 1991 Act. Id., at 174-- 175 (citing EEOC v. Arabian American Oil Co., 499 U. S. 244, 256 (1991)); 557 U. S., at 177, n. 3 (citing 14 Penn Plaza LLC v. Pyett, 556 U. S. 247, 270 (2009)).

Finally, the Court in Gross held that it would not be proper to read Price Waterhouse as announcing a rule that applied to both statutes, despite their similar wording and near-contemporaneous enactment. 557 U. S., at 178, n. 5. This different reading was necessary, the Court concluded, because Congress' 1991 amendments to Title VII, including its "careful tailoring of the 'motivating factor' claim" and the substitution of §2000e--5(g)(2)(B) for Price Waterhouse's full affirmative defense, indicated that the motivating-factor standard was not an organic part of Title VII and thus could not be read into the ADEA. See 557 U. S., at 178, n. 5.

In Gross, the Court was careful to restrict its analysis to the statute before it and withhold judgment on the proper resolution of a case, such as this, which arose under Title VII rather than the ADEA. But the particular confines of Gross do not deprive it of all persuasive force. Indeed, that opinion holds two insights for the present case. The first is textual and concerns the proper interpretation of the term "because" as it relates to the principles of causation underlying both §623(a) and §2000e--3(a). The second is the significance of Congress' structural choices in both Title VII ...


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