Retaliation Verdict Was Too Hasty, Justices Rule

     WASHINGTON (CN) – Courts must use a stricter standard to determine whether a Texas hospital retaliated against a doctor who complained about bias, the Supreme Court ruled Monday.
     Naiel Nassar, a medical doctor specializing in internal medicine and infectious diseases, had first joined the University of Texas Southwestern Medical Center as a faculty member and staff physician at its Parkland Hospital in 1995.
     The doctor said his Middle Eastern heritage became an issue when Dr. Beth Levine became chief of infectious disease medicine at the universiy.
     Claiming that Levine had criticized Middle Easterners as “lazy,” and had subjected him to unfair scrutiny, Nassar tried to arrange continue working at the hospital without also being on university faculty.
     Nassar resigned from his teaching post in July 2006 and the hospital offered him a job as a staff physician. Meanwhile the doctor emailed others at the university to explain that his departure stemmed from the harassment Levine bestowed on him because of her “religious, racial and cultural bias against Arabs and Muslims.”
     Concluding that Levine should be publicly exonerated, Nassar’s supervisor protested to the hospital that their affiliation agreement barred it from offering a non-university member like Nasser a staff physician job.
     Nassar sued when the hospital rescinded its offer, and ultimately won $700,000 in damages after a jury trial.
     A three-judge panel of the 5th Circuit affirmed the retaliation finding but said Nassar should not have prevailed on his constructive discharge claim.
     The Supreme Court concluded Monday, however, that the case merits resolution under a strict causation standard of Title VII, which provides remedies to employees for injuries related to discriminatory conduct and associated wrongs by employers.
     Title VII retaliation claims must be proved according to traditional principles of but-for causation, meaning that Nassar should have presented proof that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer,” according to the ruling.
     This is an important standard at a time when employees are filing retaliation claims “with ever-increasing frequency,” Justice Anthony Kennedy wrote for the majority, noting that the filing of such claims filed with the Equal Employment Opportunity Commission (EEOC) “has nearly doubled in the past 15 years.”
     “The university claims that a fair application of this standard, which is more demanding than the motivating­ factor standard adopted by the Court of Appeals, entitles it to judgment as a matter of law,” Kennedy added. “It asks the court to so hold. That question, however, is better suited to resolu­tion by courts closer to the facts of this case. The judg­ment of the Court of Appeals for the Fifth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.”
     The court’s four right-leaning justices joined the majority opinion.
     Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan meanwhile signed a dissent written by Justice Ruth Bader Ginsburg.
     “In so reining in retaliation claims, the court misapprehends what our decisions teach: Retaliation for complaining about discrimination is tightly bonded to the core prohibition and cannot be disassociated from it,” Ginsburg wrote. Indeed, this court has explained again and again that ‘retaliation in response to a complaint about [proscribed] discrimination is discrimination’ on the basis of the characteristic Congress sought to immunize against adverse employment action.
     “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. Of graver concern, the court has seized on a provision, §2000e-2(m), adopted by Congress as part of an endeavor to strengthen Title VII, and turned it into a measure reducing the force of the ban on retaliation.”

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