Discrimination Complaints & Form I-9 Audits

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  The hospital entity offered the plaintiff a full time position as staff physician, but later rescinded the offer after plaintiff’s former supervisor protested the job offer.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.”

The April 2013 issue of Take 5 was written by David W. Garland, Chair of Epstein Becker Green’s Labor and Employment Steering Committee and a Member of the Firm in the New York and Newark offices.

In it, he summarizes five recent labor and employment actions that employers should consider:

  1. EEOC Releases Letter Addressing Wellness Programs and Reasonable Accommodation Obligations
  2. Paying Interns May Not Be Enough to Stave Off Wage and Hour Claims
  3. House Committee Votes Out Bill Prohibiting NLRB from Acting Without a Quorum
  4. New York City Human Rights Law Expanded to Prohibit “Unemployment” Discrimination
  5. New Jersey May Become the Latest State Law Banning Employers from Requesting Social Media Passwords

 Click here to read the full version on ebglaw.com

David W. Garland“Take 5: Views You Can Use – April 2012,” written by David W. Garland, a Member of the Firm in Epstein Becker Green’s New York and Newark  Offices, discusses a number of topics relevant to employment in the health care industry.    
 
 The April 2012 issue covers employer’s requests for Facebook access, a new EEOC publication on the rights of disabled veterans returning to the  civilian workforce,  EEOC’s amended rules governing the defense of disparate impact claims based on age, challenges to the use of unpaid interns, and a recent case regarding the application of  Title VII to the provision of severance benefits.
 
Click here  to read the April issue of  “Take 5.”

 

A monthly breakfast law briefing and networking series specifically  designed for health care and wellness company executives and human resources professionals.  This informative series will address labor and employment issues during these challenging times and offer solutions.

For additional information and to register,  contact Carla Llarena or by tel: (404) 869-5363.

February 8, 2012 
Today’s OSHA: What Healthcare Companies and Practices Need to Know

March 14, 2012
It Can Hurt to Ask: TMI in the Digital Age
(Focusing on Social Media & Background Checks)

April 11, 2012
Best Practices to Avoid Wage and Hour Liability

May 9, 2012
What You Need to Know About the Americans with Disabilities Act,
and How Your Managers are Likely Getting it Wrong

June 13, 2012
E-Verify and Complying with Federal and State Immigration Law

July 11, 2012
Selling a Physician’s Practice

August 8, 2012
Employee Handbooks: How to Draft Them to best Protect Your Company and Communicate to Your Employees

September 12, 2012
Alternate Dispute Resolution: Is Mediation and/or Arbitration Preferable to Litigation for Healthcare Employers?

October 10, 2012
The 2012 Presidential Election and How it Will Impact You as an Employer

November 14, 2012
Doctor and Executive Compensation and Benefits

December 12, 2012
The Top 10 Biggest Mistakes that Health Care Employers Make
and How to Avoid Them

Epstein Becker Green
Resurgens Plaza
945 East Paces Ferry Road, Suite 2700
Atlanta, GA 30326-1380

8:30 a.m. – 9:00 a.m. Registration, Breakfast, and Networking
9:00 a.m. – 10:00 a.m. Program, Including Q&A Session