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What does the new "but for" standard mean for my retaliation case?

San Jose, CA |

I want to file a wrongful termination against my former employer for retaliation for speaking up against safety and policy violations, and engaging in protected activity. However, during my research, I keep reading about the Nassar case and the "but for" standard, which states it will make it harder for someone like me to prove retaliation. What does it mean for a layman like me to understand what this standards means for my case?

Attorney Answers 3


  1. The standard applies to the evidence as presented. Any explanation will do. Showing the reason you want to be accepted by the "but for" standard is very hard to convince a trier of fact about

    This approach is clearly stated under the recent opinion.

    'This is a key passage to consider from the case.......

    Nassar (570 U. S. ___) at page 19 of S. Ct.

    "Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer."


  2. Unless you are an experienced employment law attorney, you should not try to evaluate your own case based upon your own legal research. You should consult with an experienced employment law attorney who can advise you as to your rights and potential claims against your former employer. Since there are filing deadlines associated with employment claims you should speak with an experienced attorney as soon as possible to ascertain your filing deadlines and requirements. An experienced employment law attorney will be able to advise you regarding retaliation claims in California.

    I am not providing a legal opinion based upon your specific case since I do not have sufficient information to form an opinion at this time and in this forum. Moreover, I do not represent any client until I have evaluated their case and we have executed a written attorney-client retainer agreement. Since all legal claims have specific filing deadlines, you should consult an experienced attorney immediately to better understand your options and your filing deadlines.


  3. The Nassar case discussed retaliation claims under the federal Civil Rights Act of 1964, Title VII 42 U.S.C. §§ 2000e to 2000e–17. The same standard may not apply to your case, especially if it involves health and safety-related retaliation. Additionally, you are fortunate to be in California because in nearly all cases, our state law is better than federal in significant ways.

    As Ms. Farris said, you need a professional to analyze your claims. If you value your case, give it – and yourself – appropriate respect and get an attorney.

    To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

    I hope you can resolve your situation and wish you the best.

    twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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