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In a second case, University of Texas Southwestern Medical Center v. Nassar, the same five conservative justices gave employers a freer hand to retaliate against victims of discrimination who report that they have suffered discrimination. Nassar, which involves a physician of Middle Eastern descent who claims that his recent employer withdrew a job offer after he complained about an allegedly racist supervisor who said that “Middle Easterners are lazy,” nixes what are known as “mixed motive” retaliations claims under a key anti-discrimination law. Under the mixed motive framework, an employer cannot automatically escape liability for retaliation if racism, sexism or a similar improper motive was only one of several factors driving a decision to retaliate against an employee.
Justice Anthony Kennedy’s majority opinion rests heavily on a similar case, Gross v. FBL Financial Services, where the five conservatives killed mixed motive lawsuits in age discrimination cases. As we explained when that decision was handed down, mixed motive suits are important because they force an employer to reveal what they were actually thinking at the time that they fired or demoted an employee. Without this framework, employees are faced with the nearly-impossible task of proving that the sole thing on their boss’ mind was discrimination at the time that they decided to take action against a worker.
As Justice Ginsburg points out in dissent, Kennedy’s opinion relies on a law Congress enacted to strengthen the law’s protections against retaliation in order to undermine them. Once again, Ginsburg is also forced to explain that the conservative justices ignore the way workplaces actual function. Quoting Sen. Clifford Case (R-NJ), Ginsburg warns that Kennedy’s “sole cause” rule leaves the law’s protection against retaliation virtually meaningless. “[I]f anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of.”
http://thinkprogress.org/justice/201...-rights-today/
