May 14, 2014. HR_5.14.14The Supreme Court made some changes to its jurisprudence on employment law this last year. In University of Texas Southwestern Medical Center v. Nassar, the Court signaled a shift in the burden of proof for employees’ claims of retaliation for harassment complaints. In Nassar, a doctor complained about race/national origin-based harassment and discrimination from his supervisor. When he was denied permanent employment at the medical center, he filed a lawsuit for retaliation against him which arose from his complaint. The medical center argued that it would not have hired him for legitimate reasons, regardless of any retaliation. The employee countered that he need only show that retaliation was a motivating factor in his employer’s decision.

It’s an important distinction for employers. If a court believes an employer when it says that the employee would not have been hired/promoted/given a raise anyway, many of the 30,000+ retaliation claims filed each year would be dismissed. That is, the burden would be on the employee to show that “but for” the employer’s retaliation, the employee would have gotten the job/promotion/raise. However, if the employee need only show that retaliation was a substantial or motivating factor, employers would have a more difficult path to a dismissal or win. The Court worried that applying a lesser causation standard would give an employee about to lose his job the advantage to set up a frivolous claim if he/she cries “wolf” before he or she is fired. The Court therefore held that an employee must show that she would have gotten the job/promotion, etc. had the employer not retaliated against her because she complained of discrimination.

For more major Supreme Court decisions in employment law, check out Courtney King’s summary for the American Bar Association’s The Young Lawyer. To learn more about how to defend an employee retaliation claim and employment law, contact the Goosmann Law Firm at or call 712-226-4000.

Follow Emilee Boyle Gehling on Twitter @EmileeAtGLF!

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