Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation

38 Pages Posted: 9 Dec 2014

See all articles by Deborah L. Brake

Deborah L. Brake

University of Pittsburgh - School of Law

Date Written: December 8, 2014

Abstract

In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court broke its string of plaintiff victories in the eight retaliation cases it has decided since 2005. In its 2013 decision in that case, the Court rejected a mixed motive framework for Title VII’s retaliation provision, a part of the statute that Congress did not amend in 1991 when it adopted the motivating factor standard for proving discrimination under Title VII. For help construing what “because of” means in the retaliation claim, the Court looked to tort law, which it read as requiring plaintiffs to prove but-for causation to establish causation in fact. In doing so, the Court extended its turn to tort law in deciding statutory employment discrimination cases into the field of retaliation. The Court’s tort analogy in Nassar seemingly invites courts to explore additional tort-inspired limits on recovery. Even before Nassar, however, lower courts had crafted doctrines sounding in tort to limit what counts as protected activity under the statute. Two of these doctrines bear a strong resemblance to tort law. First, the Title VII reasonable belief doctrine draws on tort-inspired concepts of plaintiff fault to limit recovery for retaliation. Second, lower courts have recently restricted the class of persons protected by the retaliation claim, effectively injecting a tort-like no-duty rule into the employer’s obligation toward employees who have internal anti-discrimination responsibilities. This Article uses the lens of tort law to explain and critique these retaliation doctrines, with an eye toward pressing the tort analogy in a new direction, one that is more deeply grounded in employer fault.

Keywords: retaliation, Title VII, reasonable belief, manager rule, employment discrimination, torts

Suggested Citation

Brake, Deborah L., Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation (December 8, 2014). Ohio State Law Journal, Vol. 75, p. 1371, 2014, U. of Pittsburgh Legal Studies Research Paper No. 2014-43, Available at SSRN: https://ssrn.com/abstract=2535468

Deborah L. Brake (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

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