Civil rights clinic asks high court to protect employees from retaliation

April 16, 2013

The Civil Rights Amicus and Advocacy Clinic at Seattle University School of Law, representing the Committee of Interns and Residents SEIU (CIR), Doctors Council SEIU, and Korean American Medical Association (KAMA), filed an amicus brief in the U.S. Supreme Court asking the Court to safeguard anti-retaliation protections for employees who report discrimination.

The brief was filed in University of Texas Southwestern Medical Center v. Naiel Nassar, M.D. UTSW caused an offer of employment to be rescinded after Dr. Nassar complained about unlawful discrimination by his supervisor. A jury found that his employer violated his rights under Title VII of the Civil Rights Act and awarded him $3.6 million. The decision was largely upheld at the U.S. Court of Appeals, and the Supreme Court has granted certiorari.

Anjana MalhotraThough the issue on appeal is technical — whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action) — much is at stake. Professor Anjana Malhotra, who launched the civil rights clinic, explains, "The brief demonstrates that discrimination is a serious problem in academic medicine and that failing to protect doctors from retaliation will harm the provision of health care, the training of doctors, and the advancement of medical and scientific knowledge."

An amicus brief is one filed by "a friend of the court," individuals and groups who are not parties in the lawsuit but who have an interest in the outcome of the case. Amicus briefs seek to provide insight on the issues, in addition to those addressed by the parties themselves.

In the brief, the Korean American Medical Association noted that workplace discrimination interferes with the ability of doctors to excel in all aspects of their medical career. Harry Franklin, General Counsel for Committee of Interns and Residents, SEIU, which represents over 13,000 physicians across the country, said, "The system cannot address discrimination internally so long as fear of retaliation continues to keep physicians and others experiencing discrimination from reporting the facts to their employers."

Dr. Frank Proscia, 1st Vice President and Executive Director of Doctors Council SEIU, said, "Many of our members are attending physicians employed by both private and public medical schools and teaching hospitals. They have a unique understanding of the consequences discrimination has on medically underserved populations. Minority and women physicians are critical players in specialized healthcare. The threat of losing their contributions out of the fear of retaliation is something our nation's diverse population simply cannot afford."

A team of Seattle University law students — Christina Chung, Emily Henry, Jon Madtson, and Priscilla Moreno — supported by Professors Lorraine Bannai, Robert Chang, Charlotte Garden, and Anjana Malhotra, worked on the brief (PDF available here).

The U.S. Supreme Court will hear oral arguments on this case on April 24, 2013.

For more information, please contact Robert Chang at 206-398-4025.