The likelihood that the U.S. Supreme Court will accept an appeal are less than 1%.  So, when the Supreme Court accepts a new petition, that is news.  The Supreme Court accepted cert in the case of Nassar v. University of Texas Southwestern Medical Center.  See the court’s website.  Nassar concerns a plaintiff who won at the trial level.  Dr. Nassar alleged he was forced to resign because he complained about discrimination.  He alleged retaliation.  The district court had issued a mixed-motive instruction to the jury.  That means the court instructed the jury that if they found that one of the motives for his constructive termination was Dr. Nassar’s complaint, then the jury should find in the employee’s favor.  

The Fifth Circuit Court of Appeals, not usually a pro-employee court, affirmed the instruction.  See Fifth Circuit opinion. 

The issue accepted by the U.S. Supreme Court is whether mixed-motive is the proper analysis for retaliation cases.  Some circuits use a "but-for" analysis.  "But-for" is often mis-understood in the courts.  Some courts have erroneously interpreted but-for to mean sole or only cause of an adverse personnel action.  But, the U.S. Supreme Court has held in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) that but-for means determinative influence.  That is, "but-for" asks what motivation was the final cause or reason for the termination.  There may have been other causes, but what was the ultimate reason?

In interpreting statutes, we are supposed to start with the language of of the statute.  Tile VII provides that a person may not suffer adverse action "because" that person has opposed discriminatory practices.  See 42 U.S.C. §2000e-3.  The statute simply says "because."  How did we get from "because" to but-for?  Title VII was amended in 1991 to provide, among other things, that a plaintiff may show discrimination by showing that discrimination was one of many motives.  The 1991 amendment did not expressly apply to retaliation claims – it mentioned discrimination claims, not retaliation claims.  This was probably an oversight by Congress.  But, it remains.  So, some circuits have found that retaliation claims require proof like "but-for" analysis. 

Does this distinction really matter?  Does the average juror really appreciate the difference?  Some commentators say no.  But, Mike Maslanka, a defense lawyer, is sure he won one case because of this difference.   See Mike’s post.  In any event, the but-for analysis does make granting summary judgment easier.  And, as we all should know, many federal judges look for any reason to dismiss an employment case.