#butfor

Updog is a yoga position in which the participant is on all fours and bends the back down with head up, similar to the Cobra pose

A But-For is a type of clause in parliamentary debate where if a certain condition is met the clause is void

BofA is financial industry abbreviation for Bank of America, for example “if your mom is having trouble managing her 401k I could show her the liquid assets I have stored in BofA”

Deze: a traditional Zimbabwean musical instrument in which an mbira or “thumb piano” is placed inside a calabash to add resonance. They are rare outside their culture of origin and if anyone offers you one they are probably being disingenuous

I am not ethereal. Neither am I the fine dirt of the earth. I don't have any idea where I fit. I don't photograph myself anymore, or anything; I have nothing to show you. 

I left the arcade for a professional writing job -- and this is so good it's golden -- but it gives me a focus for my failure fevers. Anxiety sinks in its teeth and, for the first time, tastes the blood of fresh meat.

If I could pull this out, spin it into thread, coax a shape from the stiff, glowing fibers, then I'd have an art to share. Something to show. "Look," I wouldn't have to say. "This is mine. How does yours compare?"

I am happier now than I have ever been. Still, I am continually hardened. Too much of the climb, of the gruff, horned goat. When we swim, we sink too deeply.

You wouldn't know this. You don't know me, and I've never known what I do here. Bit by bit I disappear under the pressure of my own eraser.

In our last blog, we discussed the Supreme court’s decision in Gross v. FBL Financial Services, Inc., but this is not the only recent Supreme Court decision narrowing federal discrimination statutes. Today we address another Supreme Court ruling, University of Texas Southwestern Medical Center v. Nassar, decided in June 2013.

In this case, the Court interpreted the standard of proof for a retaliation claim under Title VII, which protects individuals on the basis of race, color, religion, sex and national origin. Title VII also prohibits retaliation against an individual who “opposes” discrimination (the “opposition” clause), or anyone who participates in an investigation relating to a discrimination claim (the “participation” clause).  

The Supreme Court analyzed the language of the retaliation provisions in Title VII, noting that the statute prohibits retaliation “because of” an individual’s opposition to discrimination, or participation in an investigation. As it did in Gross, where it interpreted similar language in the ADEA, the Court held that retaliation plaintiffs must prove that unlawful retaliation was the “But For” cause of the adverse action complained of. Now, as in federal age-discrimination cases, a much higher standard applies to plaintiffs attempting to prove unlawful retaliation.

This can all be addressed by Congress, but it remains to be seen if that will occur. In Price Waterhouse v. Hopkins, a 1988 Supreme Court decision, the Court applied a similar analysis to Title VII claims, holding that plaintiffs claiming discrimination on the basis of race, color, religion, sex or national origin were required to prove that discrimination was the “But For” cause. Congress changed that in 1991 by amending Title VII to state that Title VII discrimination can be established by showing that discrimination was “a motivating factor” in the employer’s decision.  

Interestingly, in both Gross and Nassar, the Supreme Court looked to that 1991 legislation and rejected the “motivating factor” standard for ADEA and Title VII retaliation claims, because Congress did not similarly amend the relevant provisions of those statutes. If there’s going to be a change in the applicable standard now, it will again have to come from Congress and not the courts.

Christopher D’Angelo

212.763.6822

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