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Article Title

Timing Isn't Everything: Establishing a Title VII Retaliation Prima Facie Case After University of Texas Southwestern Medical Center v. Nassar

Abstract

Two years ago, in University of Texas Southwestern Medical Center v. Nassar, the Supreme Court decided that a plaintiff in a Title VII retaliation case must prove but-for causation between his protected conduct and a defendant’s decision to take an adverse employment action against him. Although the Court was focusing only on the plaintiff’s ultimate burden of proof, several courts have interpreted Nassar’s pro-employer outcome as raising the burden plaintiffs must meet when attempting to establish a prima facie case. These courts are no longer accepting close temporal proximity between a plaintiff’s protected activity and the employer’s adverse employment action as being sufficient to establish the causal connection element of the plaintiff’s prima facie case. As a result, plaintiffs in several jurisdictions are finding it more difficult to establish their prima facie cases and are therefore losing at summary judgment.

In this Article, I argue that although Nassar raised the ultimate burden for a plaintiff bringing Title VII retaliation claims, courts that are applying Nassar to the prima facie case stage are applying Nassar incorrectly. There are four reasons these courts should not be raising the burden on a Title VII retaliation plaintiff as he is attempting to establish a prima facie case. First, the Supreme Court and all federal courts have consistently stated that establishing a prima facie case should not be a difficult task, and applying Nassar to conclude that close temporal proximity is not sufficient to establish the causal connection element of the prima facie case contradicts that directive. Second, despite what several courts believe, Nassar did not address a plaintiff’s burden at the prima facie case stage; it simply addressed a plaintiff’s ultimate burden of proving but-for causation. Third, raising the burden on a plaintiff at the prima facie case stage will allow employers to avoid scrutiny of their alleged reasons for the adverse employment actions, and it is when employers are forced to provide those reasons that employers’ true motives are often discovered. And finally, any concern that not raising the burden at the prima facie case stage will result in frivolous EEOC charges and/or complaints in federal court is unwarranted. It is for these reasons that courts should not be using Nassar to raise a plaintiff’s burden at the prima facie case stage, but rather they should be using Nassar only for evaluating whether a plaintiff has met his ultimate burden of proving but-for causation.

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