On March 14, 2011, the United States District Court for the Eastern District of Pennsylvania answered a lingering question regarding the proof required to prove a retaliation claim under Title VII.   The question was left open as to how expansively the U.S. Supreme Court’s 2009 decision in Gross v. FBL Fin. Servs. Inc. , which held that there was no such thing as a "mixed-motive" case under the Age Discrimination in Employment Act, would be applied to other statutes.  In a "mixed-motive" case the plaintiff’s burden of proof is lowered.  A plaintiff may be entitled to a "mixed-motive" instruction where there is evidence that both a legitimate and a discriminatory motive was behind the employment decision.  Where there is such evidence, in order to prove discrimination, the plaintiff need only prove that the discriminatory reason was a "motivating factor" in the employment decision, not the sole or "but for" cause of the employment decision.

In Zhang v. Children’s Hosp. of Philadelphia, Magistrate Judge L. Felipe Restrepo held that only the “but-for” standard applied to Zhang’s retaliation claims and that, as a matter of law, the lesser "motivating factor" standard would never apply to a Title VII retaliation claims in light of the language of the statute and the Supreme Court Justices’ reasoning in Gross. 

It is certainly possible (and likely) that this decision will be appealed since it addresses an issue of first impression in the wake of Gross.  In the meantime, the decision is a significant win for employers in the Third Circuit as it makes it more difficult for employees to prove retaliation claims.  This is good news especially since the EEOC has again reported an increase in retaliation claims — with 33,613 charges filed in 2009 and 36, 258 in 2010, representing 36.3% of all charges filed with the EEOC.