Direct Evidence of Retaliation Under Section 1981: Bypassing Burden-Shifting Requirements

Introduction

El Chaar v. NYU College of Dentistry is a 2025 decision of the U.S. Court of Appeals for the Second Circuit addressing when direct evidence of retaliatory motive under 42 U.S.C. § 1981 obviates the need to apply the McDonnell Douglas burden-shifting framework. Dr. Edgard El Chaar, a Lebanese immigrant and long-time part-time then full-time faculty member at NYU’s College of Dentistry, alleged that he endured racist and ethnic slurs, filed formal complaints with NYU’s Office of Equal Opportunity (OEO), and was subsequently passed over for leadership positions—the Interim Chair in 2018 and the permanent Department Chair in 2020—in retaliation for his protected activity. After removal to federal court, NYU won summary judgment on all claims. On appeal, the Second Circuit affirmed summary judgment on El Chaar’s hostile‐work‐environment and permanent‐chair retaliation claims but vacated summary judgment as to the Interim Chair claim, finding direct evidence of retaliation sufficient to raise a genuine issue of fact.

Summary of the Judgment

The Second Circuit issued a summary order on April 2, 2025. It first held that El Chaar’s hostile‐work‐environment claim under § 1981 was time-barred: no actionable hostile act occurred within the four-year statute of limitations, and mere complaints or inadequate investigations do not themselves constitute continuing harassment. Turning to retaliation, the court distinguished El Chaar’s two promotional claims:

Interim Chair (2018): El Chaar offered direct evidence—Dean Bertolami’s recorded admission that he denied the Interim Chair post “because of [El Chaar’s] complaint to OEO.” The court held that this admission alone raises a triable issue on but-for causation and bypasses the need for the McDonnell Douglas burden-shifting analysis. Accordingly, summary judgment on this claim was vacated.
Permanent Department Chair (2020): Even if El Chaar established a prima facie case of retaliation, NYU proffered overwhelming non-retaliatory reasons—preference for a tenured full professor with superior consensus-building credentials, corroborated by an anonymous faculty survey showing divided opinions about El Chaar’s interpersonal style. El Chaar failed to show pretext or but-for causation, so summary judgment in NYU’s favor was affirmed for the permanent‐chair claim.

Finally, the court noted that El Chaar abandoned any separate § 1981 discrimination claim by not arguing it on appeal.

Analysis

Precedents Cited

Byrne v. Rutledge (623 F.3d 46, 52 (2d Cir. 2010)) – standard for reviewing summary judgment in the non-moving party’s favor.
National R.R. Passenger Corp. v. Morgan (536 U.S. 101 (2002)) – hostile-work-environment claims involve repeated conduct; one timely act suffices only if part of the same unlawful practice.
King v. Aramark Servs. (96 F.4th 546, 562 (2d Cir. 2024)) – clarifies the “same discriminatory pattern or practice” requirement for continuing violations.
Fincher v. DTCC (604 F.3d 712, 724 (2d Cir. 2010)) – an employer’s failure to investigate does not by itself alter employment terms unless it contributes to a hostile environment.
Littlejohn v. City of N.Y. (795 F.3d 297, 319 (2d Cir. 2015)) – § 1981 retaliation claims may be proven by direct or circumstantial evidence.
Zann Kwan v. Andalex Grp. (737 F.3d 834, 845 (2d Cir. 2013)) – the McDonnell Douglas burden-shifting framework for circumstantial evidence cases.
Hawkins v. 1115 Legal Serv. Care (163 F.3d 684, 693 (2d Cir. 1998)) – refusal to promote may constitute an adverse action for retaliation.
Bellamy v. City of N.Y. (914 F.3d 727, 746 (2d Cir. 2019)) – a plaintiff’s own testimony can create a genuine issue of fact.
Banks v. General Motors, LLC (81 F.4th 242, 275 (2d Cir. 2023)) – but-for causation is required in § 1981 retaliation cases.

Legal Reasoning

The court’s reasoning unfolds in two parts:

Hostile‐Work‐Environment Time Bar
§ 1981 claims must be filed within four years. El Chaar’s last timely incident occurred before October 6, 2017, and he pointed to no timely acts of racial harassment. A post-complaint letter and inadequate OEO follow-up do not revive a dormant hostile-environment claim because they are not themselves discriminatory acts that altered employment conditions.
Retaliation and Direct Evidence
For retaliation, a plaintiff must show protected activity, adverse employment action, and but-for causation. Under Littlejohn, direct evidence of motive dispenses with the McDonnell Douglas burden-shifting. Here:
- Interim Chair: Dean Bertolami’s explicit statement—“we’re not appointing you because of your complaint to OEO”—is unrebutted direct evidence of retaliatory motive. That suffices to raise a genuine issue of fact, so summary judgment was improper.
- Permanent Chair: Although the OEO complaint and Dean’s remark give rise to a prima facie case, NYU produced concrete non-retaliatory reasons (seniority, tenure status, faculty consensus, survey results). El Chaar failed to show those reasons were pretextual or that but-for retaliation he would have prevailed. Summary judgment here was therefore correct.

Impact

This decision clarifies that in § 1981 retaliation suits within the Second Circuit:

Direct admissions by decisionmakers of retaliatory motive create genuine issues of fact and eliminate the need for McDonnell Douglas analysis.
Hostile-work-environment claims under § 1981 are strictly time-barred if no discriminatory act falls within the four-year window, even if the employer’s response to complaints is subpar.
Employers must guard against off-the-cuff admissions of animus, especially when discussing personnel decisions following discrimination complaints.

Future litigants will cite this case when they can point to direct statements of motive, and summary judgment motions will turn heavily on whether such evidence exists.

Complex Concepts Simplified

42 U.S.C. § 1981: Federal statute prohibiting racial discrimination in contract-related activities, including employment.
Hostile Work Environment: A workplace permeated with discriminatory intimidation that alters the conditions of employment.
Statute of Limitations: The legal time limit (four years under § 1981) within which a claim must be filed.
Continuing Violation Doctrine: Hostile‐environment claims can include a series of acts if at least one act is timely and all are part of the same unlawful practice.
Summary Judgment: A court decision granting judgment as a matter of law when no genuine factual dispute exists.
McDonnell Douglas Burden-Shifting: A framework for circumstantial evidence cases where the plaintiff first makes a prima facie showing, the employer then offers legitimate reasons, and the plaintiff finally shows pretext.
Direct vs. Circumstantial Evidence: Direct evidence (e.g., an admission) speaks directly to an employer’s intent; circumstantial evidence requires inference.
But-For Causation: The protected activity must be the actual cause that, but for it, the adverse action would not have occurred.

Conclusion

El Chaar v. NYU College of Dentistry stands as a pivotal decision on § 1981 retaliation. It reaffirms that direct evidence of decisionmaker animus—especially admissions of retaliatory motive—prevents summary judgment in favor of an employer by removing the need for the McDonnell Douglas burden-shifting framework. Conversely, it underscores the strict application of the four-year statute of limitations to hostile-environment claims and the importance of non-retaliatory justifications when ranking candidates in academic leadership searches. Employers and employees alike must take heed: any overt or recorded admission of motive can be dispositive, and procedural delays in filing or unsubstantiated claims of ongoing hostility will likely be dismissed.