In June 2013, the U.S. Supreme Court ruled that a “but for” causation standard should be applied to retaliation claims under Title VII. In other words, to prevail on a claim for retaliation under Title VII, an employee has to show that their protected activity was the “but for” cause of an adverse employment action. Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (U.S. 2013).
On October 15, 2013, the Oregon District Court held that the “but for” standard should not be applied to claims for discrimination under the ADA. Instead, the Court found that the “motivating factor” causation standard, which is less demanding than the “but for” standard, should be applied. Siring v. Or. State Bd. of Higher Educ., 2013 U.S. Dist. LEXIS 147996 (D. Or. 2013). The Court’s decision was based on the fact that the Nassar decision recognized that the “but for” test applied to retaliation claims, and not to status-based discrimination claims under Title VII, and on Ninth Circuit precedent applying the “motivating factor” standard.
From a practical standpoint, the Siring decision means that employees will have to establish claims for discrimination and retaliation using different causation standards. Further, it may be more difficult for employers to establish that they did not discriminate against an employee, than to establish that they did not retaliate against an employee.