Practice Areas
The Supreme Court Makes it Harder for Employers to Defend Retaliation and Age Discrimination Cases
By: JAMES M. REID IV, ESQ.

In a recent criminal case (Burrage v US), the Supreme Court analyzed the meaning of the heightened “but for” standard of proof; which recently replaced the more lenient “motivating factor” standard used in age discrimination and retaliation claims. The “but for” standard requires an employee to prove that “but for” age discrimination/retaliation the adverse action (typically termination) would not have taken place. This heightened standard should not be confused with the more lenient “motivating factor” standard used in Title VII cases (relating to race, color, religion, sex, and national origin) or the “significant factor” standard used in Elliott-Larsen cases (relating to religion, race, color, national origin, age, sex, height, weight, familial status, misdemeanor arrest record and marital status).

At first glance, many employers believed that the heightened standard would deter claims. In fact, the Supreme Court added (in the University of Texas Southwestern Medical Center v Nassar) that the “but for” causation standard in retaliation cases has “central importance to the fair and responsible allocation of resources in the judicial in litigation systems”. Despite the foregoing, the “but for” standard is unlikely to deter claims since discovery is usually needed to verify the reason(s) for termination. Likewise, a jury would probably not change its decision based upon the nuances of the test if they believe that the employer engaged in discrimination. At best, the “but for” standard merely continues to encourage parties to resolve claims at the time of summary judgment since that is when cases are typically won or lost.

The “but for” standard is not as strict as it seems. An employer recently contacted me stating that it had a strong defense to an age discrimination/retaliation claim because the employee had significant performance issues; despite the fact that age may have been a motivating factor. However, a court may rule that age discrimination is the “but for” reason for the termination even though the employee had significant performance issues. By way of example, “if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived” (Burrage citing State v Frazier). Likewise, if an employee had significant performance issues, but old age was the straw that broke the camel’s back (which resulted in termination), age discrimination would be the “but for” cause of the termination. Therefore, even if an employer would not terminate an employee based upon age alone, it would still be the “but for” reason for the termination if a younger employee may have been given another chance to improve. Moreover, a claim may also have been filed under state law which continues to use the more lenient standard.

Based upon the recent interpretation of the “but for” test and the nuances of the “motivating factor” and “significant factor” tests, employers may want to consider seeking the advice of counsel before taking any adverse action against employees.