Don Livingston Discusses Supreme Court Ruling in Nassar with Law360
In its article “High Court Retaliation Ruling Resonates Beyond Title VII” on the U.S. Supreme Court’s June 24 ruling in University of Texas Southwestern Medical Center v. Nassar, Law360 quoted Akin Gump labor and employment partner Don Livingston on the Court’s 5-4 endorsement of what is known as the “but-for” standard in Title VII retaliation claims—a higher standard than the 5th Circuit Court had originally applied.
In this case, the plaintiff alleged that his employer had retaliated against him for complaining of alleged harassment. The Court ruled that the plaintiff “must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer,” or, in other words, that the plaintiff must prove, in claims filed under Title VII of the Civil Rights Act, “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”
The decision is being considered a major win for employers that will lead to quick victories in cases similar to Nassar. Livingston, a former U.S. Equal Employment Opportunity Commission general counsel, said, “The practical consequence is that fewer cases will get past summary judgment.”