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A Better Partnership


Jun 2013
June 25, 2013

Court Ruling in Alleged Retaliation Case Favors Employers

Yesterday, the U.S. Supreme Court removed some uncertainty about firing employees who have previously complained about racial or sexual harassment. Its decision in University of Texas Southwestern Medical Center v. Nassar reduces the risk for an employer who disciplines or discharges a poor-performing employee after the employee has made complaints about alleged discrimination or harassment.

It is not uncommon for an employee who suspects discipline or discharge to come forward with complaints of discrimination or harassment to insulate himself or herself from the consequences of poor performance. If the employee is disciplined or discharged, he or she will then claim it was in retaliation for the complaints.

In a 5-to-4 decision, the Supreme Court ruled that an employee who sues a former employer claiming retaliation under Title VII must prove that the termination was because he or she complained of racial or sexual discrimination. If the employee can only show that the complaint was a factor in the employment decision but cannot prove that it caused the decision, the employee loses.

The EEOC and the lower court had ruled that a former employee needed only to show that his or her complaint was a factor in an adverse employment decision. This standard made it more likely that an employee would ultimately succeed in court. In rejecting the EEOC’s position, the Supreme Court explicitly referenced the financial and reputational costs of litigation to employers, noting that it is inconsistent with Title VII to impose those costs “on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent.”

The practical effect of yesterday’s decision for employers is to reduce somewhat the risk associated with  disciplining or discharging a poor-performing employee who earlier complained of race or sex discrimination or harassment.

If you have questions about disciplining or discharging an employee who has complained of discrimination or harassment, please contact a member of Warner Norcross & Judd’s Labor and Employment Practice Group.

Warner attorneys submitted a friend-of-the-court brief on behalf of Michigan and 11 other states supporting the position ultimately taken by the Supreme Court.

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