In its 2013 Nassar decision, the U.S. Supreme Court determined that plaintiffs who allege workplace retaliation under Title VII and related statutes must demonstrate that the retaliatory animus is a “but for” cause of the adverse employment action claimed. Demonstrating that retaliation was a contributing factor, known as a “mixed motive” decision, will not result in liability for the employer. However, the Supreme Court did not address whether this heightened standard should be used by federal courts in determining whether such retaliation claims survive the employer’s summary judgment motion.

Last week, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina), concluded that Nassar does not impact the legal analysis used by most courts to determine whether summary judgment is appropriate. In Foster v. Univ. of Md. – Eastern Shore, the district court dismissed the plaintiff’s Title VII retaliation claim on the basis that she failed to provide sufficient evidence that retaliation was the “but for” reason for her termination from employment.

The Fourth Circuit reversed this decision, concluding that Nassar only applies to situations where the plaintiff attempts to prove retaliation through direct evidence. Traditionally, plaintiffs have the option of using the McDonnell Douglas framework to provide a prima facie case of discrimination, and to then require the employer to demonstrate legitimate business reasons for the action taken. The plaintiff must then show that the proffered reasons are pretext in order for the claim to proceed.

In Foster, the Fourth Circuit stated that plaintiffs claiming retaliation may still use the McDonnell Douglas test in order to survive summary judgment. Therefore, the plaintiff can demonstrate retaliation without direct evidence, by calling into question the employer’s explanation for the action taken. The Fourth Circuit reconciled this position with Nassar by stating that a demonstration of pretext is functionally the same as showing “but for” reasoning for the termination decision. Federal appellate circuits are split on this question, with a minority of circuits adopting the Fourth Circuit’s position.

This decision appears to undercut the Supreme Court’s conclusion in Nassar that Title VII’s anti-retaliation provisions should be separately interpreted from its anti-discrimination clauses. By allowing plaintiffs to proceed under the lower McDonnell Douglas burden of proof, the court almost guarantees that future retaliation claims will avoid the “but for” standard adopted by the Supreme Court. The difference in lower federal court opinions on this issue raises the chances that the Supreme Court will step in to resolve these inconsistencies.