The National Employment Lawyers Association (NELA) asked the Penn State Law Civil Rights Appellate Clinic to draft an amici curiae brief in University of Texas Southwestern Medical Center v. Nassar, set for argument on April 24 before the Supreme Court; what surprised even clinic students was the number of other organizations that signed onto the brief: eighteen.
“This case involved a very complicated legal issue that we grappled with in the Clinic and in our employment law courses,” said Clinic student Asima Ahmad, who is also a managing editor for the Penn State Journal of Law and International Affairs. “We were expecting to get a lot of pushback and edits on our brief from other organizations, and would have been happy with just a few groups agreeing to sign on.” Ahmad and fellow students Jordan Johnston, Alison Renfrew and Kathryn Steffen were proud to learn that nineteen organizations in all signed on to the brief, including The Leadership Conference on Civil and Human Rights, AARP, the American Association for Justice, the Anti-Defamation League, Friends of Farmworkers, Gender Justice, The Legal Aid Society – Employment Law Center, National Employment Law Project, and the National Partnership for Women & Families.
"The issues in the case have vexed even the most experienced employment lawyers for many years," said Rebecca Hamburg Cappy, NELA Program Director. "Yet, the Clinic's students were extremely conscientious, hard-working, and able to distill these complex principles. Overall, it was a genuine pleasure to work with them and Professor Foreman."
An Issue of Causation
The retaliation provision of Title VII of the Civil Rights Act of 1964 is the crux of the case; at issue is what an employee must prove to show unlawful retaliation when the employer has multiple motives for an adverse employment action. The Court must decide whether a plaintiff must show either but-for causation (i.e. that the employer would not have taken an adverse employment action but for this reason) or mixed motive for an adverse reaction (i.e. that an improper motive was one of several reasons for the employment action).
The students think this case could be a game-changer for workers in the United States. “Currently, the circuits are split as to the proper controlling precedent. There is a recent Supreme Court decision in Gross v. FBL Financial Services holding that "but-for" causation applies to similar statutory language in the ADEA, which is designed to protect workers from age discrimination. One of the questions now is whether the Gross decision also controls the interpretation of Title VII's retaliation provision," said Johnston, who is also articles editor for the Penn State Journal of Law and International Affairs.
“The issue has been a substantial source of confusion for district and circuit courts since the Gross v. FBL Financial Services decision in 2009,” said Kathryn Steffen, who is an associate editor of the Penn State Journal of Law and International Affairs.
About the Clinic
The Civil Rights Appellate clinic was established in 2008 and has filed eight amici briefs with the Supreme Court. The Clinic has also filed three petitions for certiorari and had one granted and argued last year
by the clinic’s director Professor Michael Foreman