The United States Supreme Court, in University of Texas Southwestern Medical Center v. Nassar, recently changed the burden that victims of retaliation face under federal law. Justice Kennedy, writing for the majority int his 5-4 decision, wrote that because of the language used in Title VII, the federal law protecting against discrimination, employees who are punished for complaining about discrimination must show that "the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer."
Justice Ginsburg, writing for the dissent, pointed out the contradiction in the Court's ruling, noting that the majority misread the statute. The dissent noted that the lower standard applied in discrimination cases, which permits a finding of discrimination where discrimination is just one of various motivating factors, was the result of Congress amending Title VII in 1991. Justice Ginsburg said that the Court's simplified reading of the statute fails to take this legislative intent into account and that it is "strange logic indeed" to conclude that Congress meant to have less protection against victims of retaliation.
Employees who work in the five boroughs of New York City, however, are protected by the New York City Human Rights Law. It remains to be seen whether the courts of New York will apply the heightened burden under Nassar to that law. Given the clear and repeated declarations by the City Council that the City Law is to be interpreted more broadly than its state and federal counterparts - including going to far as to amend the City Law through the Restoration Act of 2005 to explicitly say so - we hope that the courts will continue to construe the City Law as broadly as possible, to protect the greatest number of employees.