But-For Causation in §1981 Retaliation: Direct Evidence Suffices – El Chaar v. NYU

Introduction

El Chaar v. NYU College of Dentistry is a Second Circuit summary order issued on April 2, 2025. Dr. Edgard El Chaar, a Lebanese immigrant and part‐time NYU faculty member since 1995, alleged racial and ethnic slurs by colleagues and brought suit for discrimination and retaliation under 42 U.S.C. § 1981 and New York human rights laws. After filing internal complaints with NYU’s Office of Equal Opportunity (OEO) and being passed over first for interim, then for permanent Department Chair of Periodontology, El Chaar sued. The District Court granted summary judgment to NYU on all federal claims and declined jurisdiction over state and city law claims. On appeal, the Second Circuit affirmed in part and vacated in part.

Summary of the Judgment

Hostile Work Environment (HWE) claim under § 1981: dismissed as time-barred because El Chaar produced no act within the four-year limitations window.
Retaliation claim—Interim Chair: vacated. The Court held that direct evidence (the decision-maker’s statement that “we can’t appoint you because of your complaint to OEO”) satisfies the but-for causation requirement without resort to burden-shifting.
Retaliation claim—Permanent Chair: affirmed. Even if a prima facie case existed, NYU’s legitimate, non-retaliatory reasons (tenure status, comparative leadership and interpersonal skills, survey results) were unrebutted, precluding a jury inference of pretext.

Analysis

1. Precedents Cited

Byrne v. Rutledge, 623 F.3d 46 (2d Cir. 2010) – summary judgment standard viewed in the light most favorable to the non-movant.
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) – continuing violation doctrine in hostile work environment claims.
King v. Aramark Servs. Inc., 96 F.4th 546 (2d Cir. 2024) – requirement that at least one discriminatory act occur within limitations period for HWE.
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712 (2d Cir. 2010) – failure to investigate alone does not create an actionable HWE.
Banks v. Gen. Motors, LLC, 81 F.4th 242 (2d Cir. 2023) – but-for causation in § 1981 claims.
Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998) – adverse action by passing over promotion after hostile work environment complaint.
Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015) – direct vs. circumstantial evidence in § 1981 retaliation.
Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834 (2d Cir. 2013) – McDonnell Douglas burden-shifting framework for circumstantial evidence.
Bellamy v. City of New York, 914 F.3d 727 (2d Cir. 2019) – a plaintiff’s own testimony can create a triable issue of fact.

2. Legal Reasoning

The Court divided the issues into hostile work environment and retaliation. For the HWE claim, the four-year statute of limitations rendered all incidents before October 6, 2017 time-barred. El Chaar could not identify a single post-deadline slur or act that formed part of the same pattern. Nor did a mere failure to investigate or insufficient remedial training qualify as discrete, actionable incidents.

For retaliation, § 1981 requires proof that the protected activity was the but-for cause of an adverse employment action. Two subclaims arose:

Interim Chair: El Chaar offered direct evidence—the Chair’s own words—that his OEO complaint prevented his interim appointment. Under Second Circuit law, direct evidence of discriminatory or retaliatory motive obviates the need for burden-shifting and suffices to survive summary judgment.
Permanent Chair: Even assuming a prima facie showing, NYU demonstrated a legitimate, non-retaliatory reason: preference for a tenured full professor with broader academic leadership, supported by a faculty survey. El Chaar failed to show pretext or that the proffered criteria were applied dishonestly or were mere pretext for retaliation.

3. Impact

This decision clarifies three key points in § 1981 retaliation law:

Direct evidence of retaliatory intent declared by the decision-maker is sufficient to establish but-for causation without McDonnell Douglas burden-shifting.
Hostile work environment claims under § 1981 require at least one actionable incident within the four-year window; systemic failures to investigate or engage in training alone do not create new actionable acts.
Employers’ documented, non-retaliatory reasons for hiring or promotion decisions—tenure preferences, comparative qualifications, structured surveys—will withstand summary judgment absent strong evidence of pretext.

Future litigants and courts will look to El Chaar for guidance on distinguishing direct from circumstantial proof of retaliation and on the limits of the continuing violation doctrine in hostile workplace claims.

Complex Concepts Simplified

42 U.S.C. § 1981: Federal statute prohibiting racial discrimination in contractual relationships, including employment.
Hostile Work Environment: A pattern of discriminatory conduct so severe or pervasive that it alters employment conditions.
Statute of Limitations: The time period (four years under § 1981) during which a claim must accrue and be filed.
Continuing Violation Doctrine: Allows a plaintiff to lump repeated acts into one claim if at least one act occurs within the limitations period.
But-For Causation: The plaintiff’s protected activity must be the actual cause of the adverse action—“but for” the protected activity, the decision would not have occurred.
Direct vs. Circumstantial Evidence: Direct evidence is the decision-maker’s explicit statement of retaliatory motive; circumstantial evidence requires a burden-shifting framework (McDonnell Douglas).
Pretext: When an employer’s stated nondiscriminatory reason is a cover for actual retaliatory intent.
Summary Judgment: A court decision without a full trial, granted if no genuine factual dispute exists and the movant is entitled to judgment as a matter of law.

Conclusion

El Chaar v. NYU reinforces that § 1981 retaliation claims must show but-for causation and that direct admissions by decision-makers can carry a case past summary judgment. It also underscores the importance of timely claims for hostile work environments and confirms that documented, legitimate selection criteria will defeat pretext challenges when not demonstrably dishonest. This summary order, though non-precedential, offers practical guidance on evidentiary standards in employment discrimination and retaliation litigation.