The Supreme Court, by identical 5-4 majorities, places the goals of convenience and ease of litigating Title VII cases over the legislative imperative of expanding opportunities in the workplace for all. Vance holds that a "supervisor," for purposes of proving vicarious liability for harassment against employers, must be an agent with the power to take "tangible acts" against the employee, such as firing and setting pay. Nassar holds that employees may never shift the burden to employers to disprove causation for Title VII claims of retaliation under 42 U.S.C § 2000e-3(a). Both based their interpretations in part on the convenience of allowing lower courts to take these issues away from juries.When the Supreme Court interprets Title VII of the Civil Rights Act, often the core rulings can be expressed in a few words, while the analysis that the Court uses to reach those decisions has more enduring impact.

In a contentious 2-1 opinion, the Eighth Circuit holds that a job applicant who requests a religious accommodation - here, not to work Saturdays - is not engaged in a "protected activity" under the opposition clause of Title VII's retaliation provision. EEOC v. North Memorial Health Care, No. 17-2926 (8th Cir. Nov. 13, 2018): The EEOC filed suit alleging that a hospital violated 42 U.S.C. § 2000e-3(a), the provision prohibiting unlawful retaliation, because it withdrew a conditional offer of employment to charging party (Ms. Sure-Ondara) "in retaliation for her request for an accommodation under Title VII."

The DecisionJudge Freeman denied the EEOC’s motion for partial summary judgment regarding the retaliation claim. The Court noted that under the relevant provision of Title VII, 42 U.S.C. § 2000e-3(a), the elements of a prima facie retaliation claim are: “(1) the employee engaged in a protected activity, (2) she suffered an adverse employment action, and (3) there was a causal link between the protected activity and the adverse employment action.” Id. at *4-5 (quoting Davis v. Team Elec. Co., 520 F.3d 1080, 1093-94 (9th Cir. 2008)).

Title VII also prohibits employers from retaliating against employees based on an employee’s opposition to employment discrimination or complaint of discrimination. See 42 U.S.C. § 2000e-3(a).In Price Waterhouse v. Hopkins, 490 U. S. 228 (1989), the U.S. Supreme Court first examined the standard for proving causation in status discrimination cases.

Section 704(a), the anti-retaliation provision of Title VII provides, in pertinent part:It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.42 U.S.C. § 2000e-3(a).Commentators have noted that “[i]t is essential to the analysis of § 704(a) to recognize its two different clauses . . . . The distinction is significant because the levels of statutory protection differ.” Barbara L. Schlei & Paul Grossman, Employment Discrimination Law 533 (2d ed. 1983); see also Proulx v. Citibank, 659 F. Supp. 972 (S.D.N.Y. 1987) (same); cf. Robinson v. Southeastern Pa. Transp.

Under the participation clause of Title VII, employers are prohibited from retaliating against an employee who participates in any manner in an investigation, proceeding, or hearing under Title VII or assists a fellow employee in his or her Title VII action. 42 U.S.C. § 2000e-3(a). The Seventh Circuit has held that “[t]he ‘investigation’ to which section 2000e-3 refers does not include an investigation by the employer, as distinct from one by an official body authorized to enforce Title VII.”

District court did not err in denying the employer's post-judgment motions. On the retaliation claims, the panel holds that oral complaints to the harasser him- or herself to stop harassment is a protected activity - opposition - under Title VII, 42 U.S.C. § 2000e-3(a). Though the Sixth Circuit had never ruled on the issue before, it weighed as persuasive extra-circuit case law and the EEOC's guidance on this issue: "[W]e conclude that a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII.

The Tenth Circuit holds that an employee's sending copies of a patient's private medical records to the EEOC -- to substantiate a claim of disparate treatment -- constitutes "protected activity" under the "participation" prong of the anti-retaliation section of Title VII, 42 U.S.C. § 2000e-3(a), and the ADEA. But it also turns out, in the end, not to be very wise.Vaughn v. Epworth Villa, No. 07-6005 (10th Cir. Aug. 19, 2008): The employee, a certified nurse's aide at a nursing home, alleged that she "was disciplined for making errors with respect to a patient's medical records, while a younger, white employee was not disciplined for making the same errors."

se to the Middle District of Florida. The district court originally denied Walgreens’ summary judgment motion and ruled that plaintiff’s FMLA retaliation claim should go to trial because, applying the “motivating factor” standard, the plaintiff had presented sufficient evidence for a jury to find that her FMLA leave request was at least a motivating factor in the company’s termination decision.Walgreens filed a motion for reconsideration, arguing that the “but-for” causation standard – and not the motivating factor standard – applies to FMLA retaliation claims. On reconsideration, the district court agreed with Walgreens that but-for causation is the proper causation standard for FMLA retaliation claims in light of the Supreme Court’s reasoning in University of Texas Southwestern Medical Centerv. Nassar, 570 U.S. 338 (2013), in which the Court held that the proper standard of causation for retaliation claims under Title VII of the Civil Rights Act of 1964 is but-for causation based on 42 U.S.C. § 2000e-3(a)’s use of the word “because.” Applying the but-for causation standard to the present matter, the district court held that the plaintiff could not prove that, but-for her FMLA leave request, she would not have been terminated.On appeal, the plaintiff argued that the motivating factor standard is used in other circuits and consistent with Department of Labor regulations. The Eleventh Circuit panel found no merit in her argument, but instead agreed with the district court in finding common ground in the FMLA retaliation provision and in Title VII’s retaliation clause, as per Nassar. The panel concluded that the congressional intent in the FMLA’s retaliation provision requires the application of but-for causation.TakeawaysEmployees filing FMLA retaliation claims in Eleventh Circuit courts (Florida, Georgia, or Alabama) now have a heightened burden of proof under the but-for causation standard. This higher burden of proof may in turn result in a decrease in the number of FMLA retaliation cl

In so finding, the Court rejected the district court's restriction that the opposition clause did not extend to an employee's regular job duties.Key TakeawaysThe key takeaways from the Sixth Circuit ruling:An employee does not have to prove that they engaged in conduct outside their regular job duties to sustain a Title VII opposition clause claim, because the statute's text makes it an "unlawful employment practice for an employer to discriminate against any of [its] employees," suggesting that all employees are subject to one standard, not that employee conduct must fall outside of his or her regular job duties, 42 U.S.C. § 2000e-3(a).The FLSA "manager rule"—under which conduct is not protected activity if it is undertaken while performing assigned human resource duties and undertaken to protect the employer's interests—is not extended to Title VII claims, because the two statutes differ in that the FLSA does not feature an opposition clause.