Fourth Circuit Highlights Circuit Split on Legal Standard for Retaliation Claims in Employment Cases

In Foster v. Univ. of Md.-E. Shore, No. 14-1073 (4th Cir. May 21, 2015), the Fourth Circuit identified a circuit split on the applicability of the McDonnell Douglas burden-shifting paradigm for cases alleging Title VII retaliatory action in employment. The split arises as a result of the Supreme Court's 2013 decision in Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013).

Nassar held that a plaintiff suing for retaliation must establish that retaliation was not just a motivating factor for an adverse employment decision; instead, the plaintiff must demonstrate that retaliation was the "but-for cause" of the adverse action. Id. at 2534.

The circuit split arises because some courts, construing Nassar, require direct evidence of "but-for" causation in evaluating retaliation claims.  See Foster, slip op. at 15 n.10. But the Fourth Circuit in Foster concluded the opposite: that the McDonnell Douglas test can itself establish the requisite but-for causation under Nassar.

This seems like an issue ripe for Supreme Court review. We'll see whether the defendant in Foster takes a shot.