On April 3, 2013, the Fifth Circuit affirmed a ruling from the U.S. District Court for the Northern District of Texas that a plaintiff was not entitled to attorney’s fees and costs under Title VII (42 U.S.C. § 2000 e-5(g)) where a jury returned a verdict in his favor on his retaliation claim because (it found) the employer would have taken the same challenged action in the absence of protected activity even though it had an impermissible motive.  Carter v. Luminant Power Servs. Co.No. 12-cv-10642, 2013 WL 1337365 (5th Cir. April 3, 2013).

Plaintiff/Appellant Carter asserted claims of discrimination, retaliation and harassment against his former employer, Luminant Power Services Co. (Employer) following the termination of his employment.  The U.S. District Court for the Northern District of Texas partially granted his motion for summary judgment, sending two claims of retaliation to the jury.  The jury found that Carter’s protected activity was indeed a motivating factor in the Employer’s decision to impose discipline upon him and then terminate his employment, but it also found that the Employer would have taken the same actions even in the absence of his protected activity.  Carter contended that he was entitled to fees and costs pursuant to 42 U.S.C. § 2000 e-5(g)(2)(B)(1) because he proved his protected activity was a motivating factor.  The Employer, on the other hand, argued that the applicable portion of Title VII does not apply to mixed-motive retaliation claims.  The district court sided with the Employer, and Carter appealed to the Fifth Circuit.

In affirming the district court, the Fifth Circuit analyzed the language of sections 2000 e-5(g) and 2000 e-2(m) of Title VII, which defines mixed-motive discrimination, along with the relationship between those two provisions.  The Fifth Circuit interpreted the statutory language narrowly to find that, “at least for the purposes of Title VII, ‘discrimination on account of race’ does not include retaliation; likewise, employment practices motivated by retaliation are not employment practices motivated by race.”   The Fifth Circuit acknowledged Carter’s argument that, since his protected activity centered around his having filed a charge of race discrimination with the EEOC, race was a motivating factor behind the retaliation in question and should therefore fall under the ambit of section 2000 e-2(m).  Though it noted that such an argument “ha[d] some force,” the Court pointed out that Congress listed a variety of specific discriminatory practices that the section would cover, and that its “silence with respect to retaliation is informative.” 

This standard certainly favors defendant employers, and we will monitor the reaction of courts in other circuits.

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Photo of Steven J. Pearlman Steven J. Pearlman

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

Steven’s practice covers the full spectrum of employment law, with a particular…

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

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

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.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. 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.” 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 has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly 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.