Wednesday, January 23, 2013

Maslanka on Nassar

MaslMike Maslanka has a nice post at Work Matters on the importance of the retaliation case the Supreme Court has just accepted certiorari on, Nassar v. University of Texas Southwestern Medical Center.  Here's an excerpt:

Why is this case a big deal? The but-for instruction is pro-employer: The judge tells the jury that a retaliatory motive must be the reason for the adverse employment action. By contrast, the mixed-motive instruction is pro-employee: The judge instructs the jury that an improper motive need be only one of multiple reasons for the adverse employment action.  ...  My prediction? I want to read the merits briefs, but I think 5-4 for mixed-motive.  SCOTUS, over the last several years, has been big on protecting employees’ rights to be free of retaliation when they complain.


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On the one hand, Maslanka is right that the Supreme Court has been pretty solicitous of anti-retaliation rights. Crawford v. Nashville, the most recent big retaliation-law case, was 9-0 for the employee.

On the other hand, this court loves but-for causation, even where it has to invent a reason to require it out of thin air (see Gross v. FBL Financial Services).

The liberal justices will not go along with this (as in Gross), so I'd predict the decision to either be 5-4 against the plaintiff or somewhere between 6-3 and 9-0 for the plaintiff. I'd actually be quite startled by a 5-4 win for the plaintiff, though, as that would mean that one (but only one) conservative judge deemed Gross inapplicable.

In an ideal world, the Court would acknowledge that Gross is a terribly reasoned decision and simply overturn it (such a quick flip-flop is not entirely unheard of; the best example I can think of is the 1940s flag-salute cases, Gobitis and Barnette), or at least limit it to its facts, i.e. construing the ADEA specifically. This is about as likely as the sudden appearance of flying pigs in the Great Hall during the announcement of the opinion of the Court, but a man can dream.

Posted by: Anon | Jan 23, 2013 6:57:37 PM

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