NFIB Files Brief in Employment Discrimination Case

Date: March 18, 2013

NFIB Files Supreme Court Amicus Brief in Employment Discrimination Case


Washington, D.C., March 12, 2013 – The National Federation of Independent Business (NFIB) Small Business Legal Center has filed an amicus brief in support of the petitioner in University of Texas Southwestern Medical Center v. Nassar No. 12-484. The case concerns a plaintiff’s burden of proof in a retaliation claim under Title VII of the Civil Rights Act of 1964. Specifically, the Court will decide if the provision requires proof that an employer would not have taken an adverse employment action “but for” an improper motive (such as racial discrimination), or instead requires only proof that the employer had a mixed motive.

“The Supreme Court’s decision in this case could determine the viability of many retaliation claims under the Civil Rights Act,” said Karen Harned, executive director of NFIB’s Small Business Legal Center. “An adverse decision will empower litigious employees by significantly reducing employers’ abilities to defend themselves. Small employers are frequent victims of unsubstantiated claims and should not be held legally responsible for alleged workplace retaliation or subject to liability for damages if the plaintiff cannot establish that an adverse employment action resulted exclusively from an improper motive.”

In 2008, Dr. Naiel Nassar, a doctor of Middle Eastern descent, sued the University of Texas Southwestern Medical Center, alleging that the university prevented him from obtaining a position at its affiliated HIV/AIDS clinic in retaliation for a racial discrimination complaint that he had made against his supervisor at the medical school. The university responded that it had evidence that the decision to deny Nassar the position had been made before he filed the discrimination complaint.

The district court instructed the jury that Nassar could satisfy his burden of proof by establishing that a retaliatory impulse was one motivating factor in the university’s decision to fire him, and the jury returned a verdict in Nassar’s favor. The decision was upheld on appeal to the Fifth Circuit, and was subsequently appealed to the Supreme Court, which accepted the case in January.

The lower courts have issued conflicting rulings on the interpretation of Title VII. The circuit courts of appeal are divided over the standard for retaliation claims under Title VII. The First, Sixth, and Seventh Circuits have held that plaintiffs alleging retaliation must prove but–for causation. In contrast, the Fifth and Eleventh Circuits have held that Price Waterhouse’s burden-shifting framework applies. The Supreme Court will make the final decision during its current term, the outcome of which will have a tremendous impact on small businesses.



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