Plaintiffs lawyers wailed after the U.S. Supreme Court decided University of Texas Southwestern Medical Center v. Nassar in 2013. Why? The court rejected a motivating-factor causation standard in Title VII retaliation cases, opting instead for a but-for causation analysis, which is a much higher burden of proof.
But fear not, all is not lost, at least according to a decision last year by the U.S. Court of Appeals for the Second Circuit, Kwan v. The Andalex Group. The 2-1 majority reversed a summary judgment on a retaliation claim, noting that the but-for causation standard does not require proof that retaliation was the only cause for an adverse employment action. The standard only requires that the adverse action would not have occurred absent the retaliatory motive.
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