Following a flood of employment discrimination and retaliation cases, the United States Supreme Court in University of Texas Southwestern Medical Center v. Nassar announced that an employee alleging retaliation must prove that the employer's motive to retaliate constituted a "but for" cause of the actions adverse to the employee. In addition to creating an awkward and unprecedented union of employment law and traditional tort principles of causation,' this decision upended the conventional application of the framework set forth in McDonnell Douglas Corp. v. Green and left the lower courts to pick up the pieces. ...
This Comment explores the responses to Nassar by the federal courts. After a brief survey of the holdings of the circuit courts of appeal, this Comment traces a development peculiar to the United States Court of Appeals for the Eleventh Circuit, which initially indicated that the burden properly belongs in the pretext stage. Subsequently, the Eleventh Circuit inexplicably reversed itself and now uniformly places the burden in the prima facie stage. Moreover, this pattern has almost exclusively unfolded in unpublished opinions, as federal courts, with a few exceptions, have demonstrated a curious reluctance to address the reasoning behind their decisions on this issue. After examining the best arguments put forward for each position, this Comment investigates the policy considerations underlying the debate and concludes that the Supreme Court should ultimately resolve the circuit split by requiring proof of causation in the pretext stage to effect the original purpose of McDonnell Douglas.
"An Onerous Burden: The Impact of Nassar Upon McDonnell Douglas in the Eleventh Circuit,"
Mercer Law Review: Vol. 67:
4, Article 14.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol67/iss4/14