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Supreme Court Retaliation Ruling: Employers Should Know What “But-For” Causation Is

Posted on: August 5th, 2013 | Category: Employee Relations, Government Regulatory & Compliance Issues, Human Resources, Our Blog

retaliation ruling by supreme courtOK. Let’s just get this out of the way right now. The term “but-for causation” is pure comic gold. We know it. You know it. It’s just too easy.  Rest assured, however, that your blog editor has been told by her boss to cut it out is taking the high road. (Besides, you know, been there, done that.) If you must go there, please mentally recite your favorite posterior-related pun now, before reading on about a landmark Supreme Court ruling that will have a huge impact on how retaliation cases are going to move forward from here on out in this country.

All done? Good. Here we go:

Last week we wrote about how a recent Supreme Court ruling that sought to define what constitutes a supervisory position as it pertains to hostile work environments and Title VII of the 1964 Civil Rights Act. This week, we look into how the Court ruled in regards to evidence applicable to bias and retaliation claims also brought under Title VII. In order to prove that discrimination or bias was a motivating factor in an employment decision, the Supreme Court found that an employee claiming retaliation must meet a higher burden of proof than previously considered in such cases. Specifically, there must be evidence that the employer would not have taken the challenged action if the employee had not engaged in a protected activity.

And here in lies the whole “but-for” thing.

In order to claim retaliation, the Court concluded that the claims must be proven “according to traditional principles of but-for causation,” and not simply the lessened causation test applicable in bias claims. What’s the difference, you ask?  But-for causation means that an employee must prove that illegal retaliation by their employer actually caused the harm they are alleging happened to them. Or, in other words, the employee must prove not only that something harmful happened, he or she must also show that “but for” the employer’s desire to retaliate, the employee would not have been harmed.

According to an excellent article on the ruling on the Society for Human Resources Management (SHRM) website entitled “Supreme Court Reins in Retaliation Claims”, this decision is welcomed news for employers now that retaliation claims are the most common type of claim filed against businesses. In fact, last year, 38 percent of all complaints filed with the EEOC included some claim of retaliation.

“While this ruling certainly is good news for employers and should reduce the number of frivolous Title VII lawsuits, businesses still need to keep their policies and procedures up-to-date and well worded,” says Tina Hamilton, PHR, president and founder of hireVision. “And, as always, the effort to instill a company culture that does not tolerate harassment or discrimination is a worthwhile endeavor on many levels, besides being the right thing to do.”

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This article is part of our “Look at These Laws!” series, where we highlight some major legal and compliance issues facing businesses right now, and we strongly encourage you to check back weekly (or sign up for our new blog article email alerts) to keep yourself abreast of this important information.


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