Class Actions - All State & Federal Discrimination Claims

In a significant decision on Wednesday, March 6, 2018, the U.S. Court of Appeals for the Sixth Circuit held in EEOC v. R.G. &. G.R. Harris Funeral Homes that discrimination against a worker on the basis of gender identity or transitioning status constitutes sex discrimination that violates Title VII.

In R.G. & G.R., the funeral home’s owner fired funeral director Aime Stephens after she informed him she intended to begin a gender transition and present herself as a woman at work. In finding gender identity to be covered by Title VII, the Sixth Circuit also upheld the EEOC’s claim that the funeral home’s dress code, which has different dress and grooming instructions for men and women, discriminates on the basis of sex.

In reaching its decision, the court concluded that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” As the court explained, “Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”  Finding that Stephens would not have been fired if she had been a woman who sought to comply with the women’s dress code, the court determined that Stephens’s sex impermissibly affected the termination decision.

Harris Funeral Homes attempted to defend its termination decision under the Religious Freedom Restoration Act (“RFRA”), but the majority rejected this argument: “RFRA provides the funeral home with no relief because continuing to employ Stephens would not, as a matter of law, substantially burden [owner Thomas] Rost’s religious exercise, and even if it did, the EEOC has shown that enforcing Title VII here is the least restrictive means of furthering its compelling interest in combating and eradicating sex discrimination.”

In addition to providing Title VII coverage to transgender and gender nonconforming individuals, the Sixth Circuit’s decision marks another victory for the EEOC, whose position was similarly adopted less than two weeks ago by the Second Circuit in Zarda v. Altitude Express. In that case, the Second Circuit held that discrimination on the basis of sexual orientation is discrimination based on sex and prohibited by Title VII.  As federal courts begin to reexamine earlier rulings that deny coverage to LGBT employees, employers are advised to conform their policies to EEOC guidance prohibiting discrimination based on gender identity or expression.

In a move that could have broad national effects on gay rights in the workplace, the Second Circuit ruled that discrimination based on sexual orientation violates Title VII of the Civil Rights Act, deciding in favor of the estate of a deceased skydiving instructor who was allegedly fired for telling a client he was gay.

On Monday, the United States Court of Appeals for the Second Circuit became the second federal appeals court to rule that Title VII encompasses sexual orientation discrimination in Zarda v. Altitude Express, joining the Seventh Circuit in its decision last year. This issue has divided courts for years, and even caused a split between the EEOC and the Department of Justice, with the former arguing in favor of including sexual orientation under Title VII’s protections and the latter arguing against it. The Second Circuit’s decision furthers a circuit split, which occurred when the Eleventh Circuit held that sexual orientation discrimination is not actionable under Title VII.

Chief Judge Robert A. Katzmann delivered the majority opinion and concluded, “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor. Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”

In so holding, the majority adopted each of the theories advanced by the EEOC. Applying the “comparative test” to determine whether an employment practice constitutes sex discrimination, the court considered the example in the Seventh Circuit’s decision Hively v. Ivy Tech Community College. The court compared a lesbian woman to a heterosexual man and rejected the framing urged by the government, which would compare a woman attracted to people of the same sex with a man attracted to people of the same sex.  Finding that sexual orientation acts as a proxy for sex, the majority concluded that a lesbian treated differently than a heterosexual man due to her sexual orientation would not have been subject to an adverse action “but for” her sex.

The majority opinion also concluded that sexual orientation discrimination constitutes actionable gender stereotyping, held to be unlawful under Price Waterhouse v. Hopkins, and associational discrimination, borrowing principles from Loving v. Virginia.

In dissent, Judge Lynch argued that Congress did not intend to cover sexual orientation discrimination when drafting Title VII. The majority court acknowledged this fact, but also recognized that the legal framework for evaluating Title VII claims has changed dramatically over time. “Because Congress could not anticipate the full spectrum of employment discrimination that would be directed at the protected categories,” Katzmann explained, “it falls to courts to give effect to the broad language that Congress used.”

Employers operating within the Second Circuit – comprising New York, Connecticut, and Vermont – already should have in place policies prohibiting sexual orientation discrimination because those state laws expressly prohibit such conduct. But this decision provides a roadmap for the potential adoption by other circuits around the country, and suggests that the Supreme Court may settle the current circuit split.  Thus, employers are encouraged to adopt nationwide policies prohibiting sexual orientation discrimination to the extent they have not done so.

Additionally, the sweeping adoption by the majority opinion of the positions pressed by the EEOC should signal to employers to take seriously the actions by and guidance from the EEOC in this and other matters. For example, the EEOC will finalize new enforcement guidance on harassment shortly, and employers should expect the EEOC to aggressively enforce that guidance, including with respect to harassment based on sexual orientation.

See also Nathaniel Glasser’s video interview on this topic, from next Monday’s Employment Law This Week: “Second Circuit Says Title VII Covers Sexual Orientation Discrimination.”

Almost ten months into the Trump Administration, the executive and legislative branches have been preoccupied with attempting to repeal and replace the Affordable Care Act (“ACA”) – but each attempt has thus far proved fruitless.  While the debate rages over the continued viability of the ACA, as we stated in our previous Take 5, employers should remember that obligations to comply with Section 1557 (the non-discrimination provision of the ACA) and the final rule implementing that provision remain.  But there have been developments regarding which characteristics are protected by Section 1557.  In this Take 5, we explore whether Section 1557 continues to cover gender identity and transition services.

Although the health care debate has received the bulk of the media attention, other legal developments also promise to have significant impact on health care employers.  For instance, the  Equal Employment Opportunity Commission (“EEOC”) appears to have set its sights on the accommodation of disabled workers in the health care industry, and recent decisions regarding employees’ rights to use medical marijuana may impose new burdens on employers.

These and other developments are discussed in this edition of Take 5:

  1. Will The Affordable Care Act’s Non-Discrimination Regulations Continue to Cover Gender Identity and Transition Services?
  2. Restrictive Covenants – How Effective are Non-Competes and Non-Solicits in the Health Care Industry?
  3. Navigating the Interactive Process:  Best Practices for Complying with the ADA
  4. A Growing Trend In Favor of Medical Marijuana Users in the Employment Context
  5. ERISA Withdrawal Liability: Make Sure to Look Before You Leap Into Mergers and Acquisitions

Read the full Take 5 online or download the PDF.

The Department of Fair Employment and Housing (DFEH) recently released a brief, nine-page guide for California employers, which was prepared in conjunction with the California Sexual Harassment Task Force.  This guide is intended to assist employers in developing an effective anti-harassment program, including information about how to properly investigate reports of harassment and understand what recourse is available.  The guide addresses all forms of workplace harassment, including harassment based on sex.

Specifically, the guide provides employers with information regarding the particular components for an effective anti-harassment program in the workplace. The DFEH also gives employers step-by-step guidance for how to properly handle harassment complaints and any resulting investigations.  The guide discusses topics such as confidentiality during the investigation, the timeliness of an investigation, and investigator qualifications and training.  In its discussion of proper investigations, the DFEH provides nine “credibility factors” which an investigator may utilize in making a determination. These factors include a party’s motive to lie, any history of dishonesty, the manner of testimony – including hesitant speech and indirect answers – and the party’s demeanor during the investigation.  The guide also addresses what employers should do in unusual situations, such as: what to do when the target of harassment asks an employer not to act, how to investigate anonymous complaints, and how to handle retaliation.  The DFEH emphasizes the employer’s legal obligation to prevent and correct unlawful harassing behavior, and provides information regarding remedial measures. While some of these tips may seem intuitive, this guide is a good refresher for even the savviest of employers.

In conjunction with the guide, the DFEH also released an easy-to-follow brochure and corresponding poster specifically addressing sexual harassment, which employers can provide to their employees, in compliance with California Government Code section 12950(b). The brochure and poster echo many of the same tips as the guide, but focus solely on sexual harassment.  The poster and brochure include an explanation of what constitutes sexual harassment, provide examples of harassing behavior that may occur in the workplace, detail the civil remedies for harassing conduct, and outline an employer’s responsibilities and liability when allegations of sexual harassment are made.

Employers should utilize these DFEH resources when investigating and responding to claims of harassment made in the workplace.

In a landmark decision, the U.S. Court of Appeals for the Seventh Circuit, sitting en banc, held that discrimination on the basis of sexual orientation is covered under Title VII of the Civil Rights Act’s protections against discrimination on the basis of sex.

In Hively v. Ivy Tech Community College of Indiana, Kimberly Hively, a lesbian part-time professor at Ivy Tech, applied for but was denied several full-time positions with the college. After her employment was later terminated, she filed a lawsuit alleging that she was denied promotion and then terminated because of her sexual orientation. The lower courts held that they were bound by Seventh Circuit precedent to rule that sexual orientation was not a protected category under Title VII. On July 28, 2016, a three-judge panel of the Seventh Circuit held that sexual orientation discrimination is not sex discrimination. The Seventh Circuit agreed to hear the case en banc with all 11 judges.

Deviating from almost every other circuit court, the Seventh Circuit voted 8-3 that discrimination on the basis of sexual orientation is a form of sex discrimination. In March, the Eleventh Circuit held in Evans v. Georgia Regional Hospital, et al. that it was bound by precedent that concluded that Title VII does not extend protections on the basis of sexual orientation. Later in the month, the Second Circuit reached a similar conclusion in Christiansen v. Omnicom Group, et al. While that court found that the plaintiff had no viable claim for sexual orientation discrimination, it remanded the case to the Southern District of New York to address whether the plaintiff’s claims could be considered sex stereotyping discrimination.

The court acknowledged that the three-member panel in 2016 “described the line between gender nonconformity claim and one based on sexual orientation as gossamer-thin;” the majority now concludes that such a line “does not exist at all.”

Citing to the Supreme Court’s decisions in Meritor Sav. Bank, FSB v. Vinson (sexual harassment is discrimination on the basis of sex), Price Waterhouse v. Hopkins (sex stereotyping is discrimination on the basis of sex), and Onacle v. Sundowner Offshore Servs., Inc. (same sex harassment is discrimination on the basis of sex), the court held that sex discrimination has been understood to “cover far more than the simple decision of an employer not to hire a woman for Job A or a man for Job B.”

The majority addressed Hively’s two legal theories – (1) the comparative method, whether a woman and a man would be treated differently under the same facts, and (2) the associational theory, whether discrimination occurs against an individual because of the protected characteristic of one with whom the individual associates. Under each theory, the court reduced each inquiry to a simple question – if the employee in question were male instead of female, would it matter that the employee was in a relationship with a woman? Answering that if the sex of a plaintiff such as Hively in a lesbian relationship was changed, then the outcome would be different, the Court held that discrimination on the basis of sexual orientation necessarily is discrimination on the basis of sex.

The court acknowledged the long-standing critique of the judiciary with respect to civil rights issues – that the court was attempting to “legislate from the bench.” Writing for the majority, Chief Judge Diane P. Wood wrote that the decision to “amend” Title VII to add sexual orientation as a new protected category “lies beyond our power.” She further wrote: “We must decide instead what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. This is a pure question of statutory interpretation and thus well within the judiciary’s competence.” In response to the dissent’s reliance upon legislative intent, the Court noted that the definition of sex discrimination has expanded in numerous ways since the passage of Title VII, and that the Congress that enacted Title VII likely would be surprised as to the extent of expansion.

In an expectedly colorful concurrence, Judge Posner acknowledged that the Court is, in fact, re-writing Title VII because society’s definition of “sex” has changed over the past 50 years. Instead of relying solely upon stereotyping claims, as the majority writes, Judge Posner instead recognized that the judiciary has long been interpreting statutory language in the context of society’s new and changing understanding of terms. And here, Posner writes, that we should not rely upon the 88th Congress’ “failure” to divine how society’s interpretation of the term would change. Rather, he writes: “We understand the words of Title VII differently not because we’re smarter than the statute’s framers and ratifiers but because we live in a different era, a different culture.”

With a Circuit split, the question of whether sexual orientation is a protected characteristic under Title VII is ripe for review by the Supreme Court, although this case likely will not be the vehicle. Ivy Tech has released a statement that it does not intend to appeal. The decision in this case, however, may affect the Eleventh Circuit’s decision to rehear the Evans case en banc. When this issue does reach the Supreme Court, the soon-to-be-confirmed Supreme Court justice Neil Gorsuch could render an impactful vote should this reach the highest court.

In May 2016, the U.S. Department of Health and Human Services (“HHS”) published a final rule implementing Section 1557 of the ACA. Section 1557 prohibits discrimination in the health programs and activities of “Covered Entities” on the basis of race, color, national origin, sex, age, or disability. Section 1557 also imposes detailed and specific notice and disclosure requirements on Covered Entities, including, among other things, the requirement to provide information about the use of auxiliary aids and services, the adoption of grievance procedures, and access for individuals with limited English proficiency. Covered Entities are also required to include specific nondiscrimination protections in the design of group health plans.

A “Covered Entity” is one that receives “federal financial assistance” for a health program or activity from HHS. If any part of a health program or activity receives federal financial assistance from HHS, then all of that entity’s programs and activities are subject to the nondiscrimination provisions of the final rule.

While the nondiscrimination provisions of the final rule went into effect on July 18, 2016, and “Covered Entities” subject to the final rule were required to comply with the notification and grievance procedures by October 16, 2016, entities are still struggling to determine if they qualify as “Covered Entities” subject to the final rule.

Is it only federal financial assistance from HHS that matters for this determination?

In general, Section 1557 of the ACA applies to all health programs and activities, any part of which receives federal financial assistance from any federal agency. However, the requirements in the final rule specifically apply only to recipients of federal financial assistance from HHS.

What does federal financial assistance include?

“Federal financial assistance” includes Medicare Parts A, C, and D and Medicaid payments, grants, loans, subsidies, contracts of insurance, and other types of assistance. Such assistance also includes premium tax credits and advance payments of premium tax credits and cost-sharing reductions for health insurance coverage purchased through the federal and state Health Insurance Marketplaces.

Importantly, HHS does not consider Medicare Part B payments to be federal financial assistance.

What are some examples of “Covered Entities”?

HHS defines “Covered Entities” that are subject to the final rule to include:

  • every health program or activity that receives HHS funding;
  • every health program or activity administered by HHS, such as the Medicare Part D program; and
  • the Health Insurance Marketplaces and all plans offered by issuers that participate in those marketplaces.

“Covered Entities” may include entities that receive federal financial assistance through their participation in Medicare or Medicaid (e.g., hospitals, nursing facilities, and home health agencies) or through grants or subsidies from HHS agencies (e.g., health clinics, community health centers, and health-related schools), state Medicaid agencies, state public health agencies, health insurance issuers that participate in the Health Insurance Marketplaces, Medicare Advantage plans and Prescription Drug Plan sponsors, and physician practices receiving Medicaid payments or other payments from HHS (e.g., meaningful use incentive payments).

What about entities that do not receive funding directly from HHS?

A wide array of entities that provide health-related services do not receive funding directly from HHS but do receive payment for their services through other HHS-funded organizations. The “Covered Entity” status for these entities is more complex and must be examined closely.

By definition, a “recipient of federal financial assistance” is an entity to which such funding is extended directly or through another recipient. However, it is important to look to the entity that Congress intended to assist or subsidize with certain funds when determining whether a downstream entity is a recipient of federal financial assistance.

Nonetheless, whether a downstream entity is covered under the final rule remains far from clear, as HHS offers only limited guidance. HHS makes some distinctions in the final rule. For example, an issuer participating in a Health Insurance Marketplace receives federal financial assistance, but a health care provider that contracts with such an issuer does not become a recipient of federal financial assistance by virtue of that contract. Similarly, physicians who contract to provide health services to hospitals or clinics that receive federal financial assistance do not become recipients of federal financial assistance by virtue of those contracts. However, HHS has confirmed that providers that receive reimbursement from a Medicare Advantage plan are subject to the final rule, regardless of whether payments from the plan go directly to the provider or to the patient.

An entity acting as a third-party administrator for an employer’s employee health benefit plan may not be a “Covered Entity” if the entity is legally separate from an issuer that receives federal financial assistance for its insurance plans. Nonetheless, if an issuer that receives federal financial assistance also provides third-party administrator services, the final rule would apply to those third-party administrator services.

As a general rule of thumb, downstream entities contracting with a recipient of federal financial assistance may not qualify as a “Covered Entity” by virtue of the contract alone. Entities unsure of their status should consider whether they are the intended recipient of the federal financial assistance when making this determination. Entities also should be aware that a “Covered Entity” may include provisions regarding compliance with Section 1557’s nondiscrimination requirements in its contracts with downstream entities. Finally, HHS has reserved the right to engage in a case-by-case inquiry to evaluate whether an entity is appropriately subject to Section 1557. A highly fact-specific inquiry should be undertaken to determine if an entity that does not directly receive funding from HHS might still be a “Covered Entity” in the eyes of HHS.

Takeaways

Entities operating a health program or activity should determine the source of funding for any such program or activity. Those programs or activities receiving federal financial assistance are subject to the nondiscrimination requirements of Section 1557, which include providing a notice of nondiscrimination to the public, implementing a grievance procedure, designating a civil rights coordinator, and providing language assistance to limited English proficiency speakers and appropriate accommodations to individuals with disabilities.

Employers sponsoring group health plans should read the following article by our colleagues to determine the extent to which the Section 1557 nondiscrimination rules apply to them.

A version of this article originally appeared in the Take 5 newsletter Five Key Issues Impacting Health Care Employers.”

Kyler Prescott was a 14 year old transgender boy who was receiving puberty-delaying medication to help him transition.  Shortly before Kyler’s death he had “suicidal ideation” and was taken to Rady Children’s Hospital – San Diego in April 2015.  The hospital has a Gender Management Clinic to provide services to children with gender dysphoria and related issues.  A lawsuit under the ACA’s non-discrimination provision, § 1557, alleges that after admission, despite assurances that he would be referred to with masculine pronouns, hospital employees referred to Kyler as a girl.  The suit claims that the hospital’s actions discriminated against Prescott “resulting in his inability to access necessary services and treatment during a dire medical crisis.” The federal lawsuit, filed in the Southern District of California, further alleges that the use of female references exacerbated his condition and that he thereafter had further difficulties and ultimately committed suicide.

As discussed in our recent October 6, 2016 webinar and in our Client Advisory, HHS’s Office of Civil Rights (“OCR”) final § 1557 regulations explicitly include coverage for gender identity and sexual stereotypes.  They also state that covered entities must “treat individuals consistent with their gender identity . . . .” 45 C.F.R. § 92.206.  This lawsuit appears to be one of the first under § 1557 for gender identity discrimination.  It will surely not be the last.

The suit focuses on claims that nurses and other staff repeatedly used feminine pronouns in referring to Kyler despite assertions in the court pleadings of multiple calls by his mother to the hospital to explain his distress at this alleged conduct.  Hospital staff failed to use Kyler’s preferred pronouns despite hospital records showing Kyler’s legal name and gender change from female to male, according to the suit.

The results of the lawsuit, which at this time are only unproven allegations, will await further court proceedings. What the suit clearly shows, however, is that compliance with § 1557’s notice and policy requirements, effective October 16, was only the beginning of § 1557 compliance needs for covered health care entities.  Among the necessary next steps in compliance with which we are assisting clients are developing appropriate training of all staff interacting with patients and companions on the requirements of § 1557 in providing services, proper categorization of gender in health care records and in-patient references, as well as the need for training and visibility on provider non-discrimination and grievance policies.  This lawsuit dramatically emphasizes the urgency for continuing efforts to achieve full compliance with § 1557 and the OCR final regulations to avoid § 1557 discrimination claims on the expansive grounds covered by § 1557 as interpreted in OCR’s final regulations.

Our colleague Joshua A. Stein, attorney at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the health care industry: “Recent Decisions Reinforce That Accessible Technology Claims Are Not Going Away.”

Following is an excerpt:

As businesses continue to compete to provide customers and guests with more attractive services and amenities, we have seen increased utilization of technology to provide those enhanced experiences.  However, in adopting and increasingly relying on new technologies such as websites, mobile applications, and touchscreen technology (e.g., point of sale devices, beverage dispensers, check-in kiosks) accessibility is often overlooked because of the lack of specific federal standards in most contexts. The two recent decisions discussed below – one in New York and the other in California – do just that.

Read the full post here.

Nathaniel M. Glasser
Nathaniel M. Glasser

North Carolina made waves last week by enacting legislation prohibiting cities from allowing transgender individuals to use public restrooms that match their gender identity and further restricting cities from passing anti-discrimination ordinances that would give protected status to sexual orientation or gender identity.

Employers in North Carolina and across the country, however, should be aware of the trend in the federal courts and agencies to grant protections to transgender workers under Title VII of the Civil Rights Act.  Last week two federal courts allowed transgender plaintiffs to proceed with their gender discrimination claims, representative of the growing acceptance of sex stereotyping or gender nonconformity theories under these circumstances.

In Fabian v. Hospital of Central Connecticut, No. 3:12-cv-01154 (D. Conn. Mar. 18, 2016), the District of Connecticut denied summary judgment to a hospital on a surgeon’s sex bias claims.  The surgeon alleged that the hospital failed to hire her after learning of her plan to transition from male to female.  Tracing the history of transgender claims under Title VII, Judge Underwood, a well-respected jurist in the district, noted that although most early cases considering the issue held that Title VII does not protect transgender individuals, courts more recently have allowed such claims to proceed on a theory that the term “sex” in Title VII refers to discrimination based on factors related to or having something to do with sex.

The District of Arizona reached a similar conclusion in Doe v. Arizona, No. 2:15-cv-02399 (D. Ariz. Mar. 21, 2016).  In that case, a male transgender correctional officer alleged he was not safe at work because his coworkers, who referred to him as “he/she” or “it,” would not respond to his emergency calls.  The court denied Arizona’s motion to dismiss, finding that the plaintiff’s allegation of transgender status satisfied the “protected status” element of a gender discrimination claim under Title VII.  (While not the subject of this post, this case also has important implications regarding failure to exhaust administrative remedies for retaliation claims.)

These courts join a number of federal courts – including the First, Sixth, Ninth, and Eleventh Circuits –that have extended protections to transgender individuals under the sex discrimination provisions of Title VII or Section 1983.  Federal agencies also have expressed their intent to enforce protections for transgender workers.  For instance:

  • The EEOC interprets Title VII as prohibiting discrimination based on gender identity, a position asserted against a Florida-based organization of health care professionals, resulting in a consent decree in 2015, and against a Michigan funeral home in a lawsuit surviving a motion to dismiss.
  • Pursuant to Executive Order 13672, federal contractors are now prohibited from discriminating on the basis of gender identity, and OFCCP has issued amended regulations incorporating this prohibition.
  • OSHA has issued a guide advising that transgender employees should be permitted access to restrooms and locker rooms consistent with their gender identity.
  • Regarding the implementation of Section 1557 of the Affordable Care Act, the Department of Health and Human Services has issued a Notice of Proposed Rulemaking, which would incorporate discrimination on the basis of gender identity into the definition of “on the basis of sex.”

Thus, even if North Carolina’s law survives the recent legal challenge in court, employers should be aware that federal law may still grant protections to transgender workers.  Indeed, in January 2015, the Eastern District of North Carolina denied a hospital’s motion to dismiss a claim of sex discrimination brought by a certified nursing assistant alleging she was denied a position based on her transgendered status.

Additionally, regardless of the viability of a claim for transgender discrimination under federal law, at least sixteen states – including California, Illinois, Maryland, Massachusetts, New Jersey – and the District of Columbia, now include gender identity as a protected characteristic under their discrimination laws.  Employers outside of North Carolina should know whether state or local law provides similar protections.

Employers are advised to take a proactive role in preventing transgender, or gender identity, discrimination in the workplace and to have a plan in place to accommodate the potential needs of transgender workers.

By:   Amy B. Messigian

In University of Texas Southwestern Medical Center v. Nassar, one of two employment-related opinions issued on Monday by the Supreme Court, a narrow majority held that a retaliation claim brought under Title VII of the Civil Rights Act of 1964 must be proved according to a strict but for causation standard.  Under such a standard, a plaintiff must present proof that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”

The underlying facts of the Nassar case are somewhat complicated.  The plaintiff, a medical doctor employed as a faculty member of the defendant medical center and staff physician for its affiliated hospital entity, resigned from the faculty claiming that the chief of infectious disease medicine at the medical center was biased against individuals of Middle Eastern heritage such as plaintiff.  The hospital entity offered the plaintiff a full time position as staff physician, but later rescinded the offer after plaintiff’s former supervisor protested the job offer.  The plaintiff sued, alleging that the medical center retaliated against him for his discrimination complaints by encouraging the hospital to rescind its job offer.  A jury returned a verdict in the plaintiff’s favor and awarded more than $3 million in damages.

The medical center appealed, arguing that the judge had instructed the jury to apply a lesser standard of causation than required for a retaliation verdict under Title VII.  Specifically, the judge told the jury it only had to find that retaliation was a motivating factor in the supervisor’s actions, called mixed-motive. The medical center argued that the judge should have told the jury it had to find that the discriminatory action would not have happened but for the supervisor’s desire to retaliate in order to hold the medical center liable for retaliation.

Though the Fifth Circuit affirmed the retaliation finding, the Supreme Court disagreed.  Without deciding whether the facts of the case warranted a finding of retaliation, the Supreme Court determined that the wrong standard had been applied, warranting reconsideration by the lower court under the strict but for causation standard.

Although the opinion raises the burden of proof required of employees who bring retaliation claims and should be uniformly applauded by employers, the holding may create some confusion for juries in cases where both discrimination and retaliation claims are raised.  By this ruling, the Supreme Court has adopted a different standard for retaliation claims and discrimination claims, the latter of which is tested under the more lenient motivating factor standard.  Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, dissenting in an opinion written by Justice Ruth Bader Ginsburg, criticized the use of a different standard for retaliation and discrimination claims: “The court shows little regard for the trial judges who will be obliged to charge discrete causation standards when a claim of discrimination ‘because of,’ e.g., race is coupled with a claim of discrimination ‘because’ the individual has complained of race discrimination. And jurors will puzzle over the rhyme or reason for the dual standards.”