“But-for” or “mixed motive” is a causation question not unknown to the U.S. Supreme Court. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a plurality held that the anti-discrimination provision of Title VII only requires a plaintiff to prove that discrimination was a “motivating factor” for an adverse employment action. But 20 years later, in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court held that the ADEA requires more demanding proof that age was the “but-for” cause of an adverse employment action, such that a defendant is not liable if it can prove that it would have taken the same action for other, nondiscriminatory reasons. Circuit courts have since split on whether Gross or Price Waterhouse establishes the general rule for other federal statutes that do not explicitly provide for mixed-motive claims. In recently granting review in University of Texas Southwestern Medical Center v. NassarNo. 12-484 (U.S.), the Supreme Court has decided to entertain yet another variation of a familiar question: whether the more lenient “mixed-motive” standard applies to Title VII retaliation claims or whether the more stringent “but for” standard applies. The resolution of that question will be significant not only for Title VII retaliation claims, but potentially for whistleblower retaliation claims arising under other similarly worded statutes, such as the False Claims Act (FCA).

 For example, if the Supreme Court finds that a “mixed-motive” causation standard is permissible under Title VII’s retaliation provision, more claims and potential liability for employers are likely to follow. In fact, a recent empirical study found that under the more lenient “mixed-motive” standard, plaintiffs recover significantly more often than under the more conventional “but-for” causation standard. See David Sherwyn & Michael Heise, The Gross Beast of Burden of Proof: Experimental Evidence Employment Discrimination Case Outcomes, 42 ARIZ. ST. L.J. 901, 944 (2010). Although the Civil Rights Act of 1991 partially abrogated Price Waterhouse, even if a defendant proves as an affirmative defense to a Title VII discrimination claim that it “would have taken the same action in the absence of the impermissible motivating factor,” the court may still award equitable relief (including equitable monetary relief such as front pay) and attorneys’ fees to the plaintiff. Moreover, as the employer in Nassar explained in its petition seeking Supreme Court review, “equitable relief and attorney’s fees can be far more burdensome than a damages award.”

The importance of this issue potentially extends far beyond the Title VII retaliation context. Causation is an element of nearly all causes of action, including for claims alleged under various retaliation and whistleblower statutes. For instance, given the linguistic similarity between the retaliation provisions of Title VII and the FCA, a finding that “mixed-motive” cases are viable under Title VII’s retaliation provision could potentially make it equally challenging for employers to defend FCA retaliation cases. Compare 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].”) (emphasis added), with 31 U.S.C. § 3730(h) (“Any employee . . . shall be entitled to all relief necessary to make that employee . . . whole, if that employee . . . is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee . . . in furtherance of an action under [the FCA] or other efforts to stop 1 or more violations of [the FCA].”) (emphasis added).

Thus, the potential consequences of the Supreme Court decision in Nassar are many and potentially expansive. It remains to be seen whether the case will be argued and decided prior to the beginning of the Court’s summer recess in late June.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of James Segroves James Segroves

James Segroves is a senior associate in the Health Care Department of Proskauer. His litigation-focused practice covers a diverse range of subject matters at both the trial and appellate levels of court systems throughout the United States, as well as matters before administrative…

James Segroves is a senior associate in the Health Care Department of Proskauer. His litigation-focused practice covers a diverse range of subject matters at both the trial and appellate levels of court systems throughout the United States, as well as matters before administrative tribunals.

James regularly represents defendants in litigation brought under the federal False Claims Act (FCA) and similar state legislation. For example, in 2011, James helped convince the United States District Court for the Southern District of New York to dismiss an FCA action brought against a major academic medical center seeking penalties and treble damages exceeding $1.5 billion. In dismissing the case with prejudice, the district court agreed that federal Medicare regulations did not expressly prohibit the accounting practice in question. “The worst that can be said of [the defendant-hospital],” the district court concluded, “that it took advantage of the uncertainty in the regulations to maximize its Medicare billings. This is not fraud.” On August 16, 2012, the district court denied the relator’s motion to reopen the case based on supposed “newly discovered” evidence, finding that the motion was untimely and lacked substantive merit.

Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Whistleblower, Restrictive Covenant and Trade Secret Practice.

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Whistleblower, Restrictive Covenant and Trade Secret Practice. Steven’s national practice focuses on defending companies in federal and state courts and arbitration against claims of: discrimination, retaliation and harassment, including claims brought by high-level executives; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations (including class, collective and PAGA actions).

Illustrating his versatility, Steven has successfully handled bench and jury trials in multiple jurisdictions (e.g., Illinois, California, Florida and Texas); defended one of the largest Illinois-only class actions in the history of the federal courts in Chicago; and prevailed following his oral arguments before the Seventh Circuit and state appellate courts. Steven brings his litigation experience to bear in counseling clients to minimize risk and avoid or prepare for success in litigation.

Investigations. Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Thought Leadership and Accolades. Steven was named Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He was also named as One of the Top 10 Impactful Labor & Employment Lawyers in Illinois for 2023 by Business Today. He is a Fellow of the College of Labor and Employment Lawyers. Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Chambers also reports that “He is someone who can navigate the twists and turns of litigation without difficulty. Steven is great with brief-writing, crafting arguments, and making sure the client is always happy.”

Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven was appointed to Law360’s Employment Editorial Advisory Board and selected as a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is often quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC, and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.

In 2024, Steven received the Excellence in Pro Bono Service Award from the United States District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association.