Protecting Title VII’s Antiretaliation Provision in the Wake of University of Texas Southwestern Medical Center v. Nassar

Pathman, Kimberly A. | January 1, 2015

In 2013, the Supreme Court changed the course of its decades-long practice construing Title VII’s antiretaliation provision broadly to protect employees. The Court held in University of Texas Southwestern Medical Center v. Nassar that plaintiffs must assume the onerous, if not impossible, task of proving retaliation claims using the “but- for” causation standard. This high burden of proof not only forces employees with limited information to analyze an employer’s multifaceted motivations, but also it allows employers to skirt around Title VII liability. This decision is troubling because it runs contrary to Congress’s intent to strengthen antidiscrimination laws. Although Justice Ginsberg called for prompt congressional action in her dissent, there is little chance a statutory fix will be enacted in the near future. This Note therefore argues that courts and the EEOC must employ their own stopgap measures to protect employees from Nassar’s adverse effects. It outlines two alternatives to congressional action: first, a judicial reinterpretation of but-for causation that employs modern principles of tort law to create a more realistic burden for plaintiffs; second, an EEOC enforcement mechanism that encourages compliance with antiretaliation laws and effectively roots out frivolous retaliation claims. These proposals are intended to shift the conversation away from the changes Congress should make to Title VII’s language if and when it does take action, to alternative and practicable solutions that can help stem Nassar’s adverse effects while we wait on Capitol Hill.