Must A “But For” Cause Be The “Sole” Cause?

Civil rights laws prohibit workplace discrimination and harassment. To ensure these laws are respected, Congress made it illegal to retaliate against employees who make good faith complaints about possible violations. Examples of retaliation include firing an employee because she complained about sexual harassment. A good summary of civil rights retaliation laws is found on the EEOC’s website.

For several decades, an employee who brought a retaliation lawsuit had to prove that retaliation was a motivating factor in the termination. The Supreme Court imposed a greater proof requirement in 2013 when it decided University of Texas Southwestern Medical Center v. Nassar. Nassar requires aggrieved employees to establish that retaliation is a “but for” cause of the adverse employment action. Stated another way, the employee must establish that the harm (termination, for example) would not have occurred “in the absence of—that is, but for—the defendant’s conduct.”

Nassar is not a controversial ruling. After all, people should only be held responsible for the harm they cause. Shortly after the Supreme Court decided Nassar, creative lawyers suggested that prevailing plaintiffs must prove retaliation is the sole cause of their harm. The Supreme Court in 2014 seemed to reject this line of thinking when it reiterated the commonsense proposition that separate factors can each be independently sufficient causes of a harm. Burrage v. United States.

Still, some courts interpret Nassar to mean that illegal retaliation occurs only when retaliation is the sole cause of the employee’s termination. An Alabama case illustrates this confusion. In Savage v. Secure First Credit Union, the plaintiff alleged she was retaliated against for complaining about race discrimination. The court dismissed the plaintiff’s retaliation claim because she had naturally alleged that the underlying discrimination played a role in her termination. “In order to pursue a retaliation claim under Nassar,” the court wrote, “a plaintiff must make it perfectly clear in her pleading that there are no proscribed motivations other than an intent to retaliate.” Other parts of the Savage opinion say the employee-plaintiff must prove that retaliation was the only cause for termination.

Expect fallout from decisions like Savage because retaliation cannot occur without an underlying allegation of discrimination. Savage suggests that aggrieved employees must pick which claim to pursue at the outset of the lawsuit–discrimination or retaliation. But at the pleading stage, employees have not had the opportunity to conduct discovery and review the employer’s records to decide which is the better claim. That is why alternative pleading and theories are permitted under the Federal Rules of Civil Procedure.

All in all, Savage is a bad decision. Civil rights plaintiffs and attorneys must fight to ensure that it does not become “the law of the land.”