ANALYSIS
Documentation Key in Defense Against Discrimination, Retaliation Claims
WRITTEN BY RICHARD KELLY, ESQ. S
chool administrators, district transportation departments and school bus contractors all should know that Title VII of the Civil Rights Act of 1964 as amended prohib-
its employment discrimination. It also prohibits retaliation by employers against employees who file discrimination claims. Recently, the number of retaliation claims filed
by employees has surpassed all other types of claims filed with the Equal Employment Opportunity Commission. Meanwhile, the EEOC guidance manual has historically taken a strict approach to retaliation claims by refusing to allow employers to defend by showing that there were other legitimate and non-discriminatory reasons for adverse action against an employee who had claimed discrimination. In 2013, the U.S. Supreme Court reviewed this issue in the case of Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (U.S. 2013). It held that the EEOC’s published guidance was wrong, allowing employers to defend against retaliation claims by showing legitimate and non-discriminatory reasons for adverse employment actions.
THE NASSAR CASE AND DEFENDING AGAINST RETALIATION CLAIMS
Dr. Naiel Nassar was a physician who worked as both a faculty member for the University of Texas and a staff physician at the University of Texas Southwestern Medical Center. Te two organiza- tions had an affiliation agreement whereby all staff physicians were also required to be faculty members. Dr. Nassar resigned from his faculty position with the University, claiming he was “constructively discharged” as a result of racial discrimination by his supervisor. Dr. Nassar made this claim even though his super-
visor had assisted him in receiving a promotion just prior to his resignation. Dr. Nassar then requested and received a position as a physician at the Medical Center even though he was not, at that time, a faculty member with the University. When Dr. Nassar’s for- mer supervisor complained of Nassar being permitted to work at the Medical Center without also working as a faculty member at the University, the offer was withdrawn and litigation ensued. Te lower court dismissed the underlying
discrimination claim, but held that the retaliation claim could go forward despite the employer
40 School Transportation News April 2014
showing that the job offer was withdrawn for the legitimate and non-discriminatory reason of the existing policy requiring physicians to also be faculty members at the University. An employee can not only claim discrimination
under Title VII of the Civil Rights Act, but also that their employer then retaliated against them for presenting a discrimination claim. Before the Nassar decision, a retaliation claim could still go forward even if the underlying claim of discrimination was found to be meritless. A claim of retaliation is established by the employee showing three elements: (1) the employee engaged in an activity protected by law; (2) the employer took an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action. (Mason v. Transportation Solutions, 2010 U.S. Dist. LEXIS 67416; Crownover v. Shriver Contract Services, 2008 U.S. Dist. LEXIS 3021; citing Krouse v. Amer. Sterilizer Co., 126 F.3d 494 (3d Cir. 1997).) Up until the U.S. Supreme Court’s decision on
June 24, 2013, in Nasser, an employee claiming re- taliation would need to only show that discrimina- tion was a motivating factor, resulting in an adverse employment action. But, the Nassar Court held that an employer can avoid liability for a claim of retal- iation by showing that there were other legitimate and non-discriminatory reasons for the adverse employment action. Specifically, the employee must prove that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer,” Nassar at 2533.
THE IMPORTANCE OF THE NASSAR OPINION AND RECOMMENDATIONS
Te Nassar opinion is particularly important
because it is the second time in 2013 that the U.S. Supreme Court ruled against guidance published by the EEOC. In another case, Vance v. Ball State University, 646 F.3d 461 (2013), the Court nar- rowed the definition of a “supervisor” as compared to previously published guidance by the EEOC. While the Nassar and Vance opinions are good decisions favoring employers, employers must still carefully document their legitimate non-discrimina- tory reasons for taking adverse employment actions. Tat is, workplace policies, rules, performance issues, etc., must be carefully and diligently documented in order to present an effective defense against an
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