Two Clear Supreme Court Victories for Employers
The U.S. Supreme Court issued two decisions this week that make it more difficult for plaintiffs to prove their Title VII employment claims.
The Supreme Court defined more precisely who is a "supervisor" for purposes of determining an employer's liability for unlawful workplace harassment under Title VII. The answer to that question is extremely important. The liability standard is different when the harasser is a supervisor versus a co-worker. If a supervisor's unlawful harassment results in a "tangible employment action" (e.g., demotion, discharge, etc.) against an employee, the employer is vicariously liable for that action even though it was not aware of the harassment. If no "tangible employment action" is involved, an employer can escape liability by asserting it exercised reasonable measures to prevent and correct unlawful harassment and the employee unreasonably failed to take advantage of the employer's preventative measures. In non-supervisor co-worker situations, the employer can be held liable only if it was aware of the unlawful harassment/discrimination and chose to tolerate or ignore it.
In Vance v. Ball State University, 570 U.S. ___ (June 24, 2013), the Court determined a supervisor is someone who is authorized to take "tangible employment action" against the employee. Tangible employment action consists of behavior that "effect[s] a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." In other words, an individual's authority must exceed the daily control over an employee's work activities. He/she must have the authority to affect real change in the employee's employment status.
In Vance, the plaintiff alleged another employee created a racially hostile work environment. Vance argued the co-worker should be considered a supervisor because she had leadership responsibilities that included directing her and other employees in the workplace kitchen. The authority to take tangible employment action, however, belonged to the head chef and general manager. Thus, it was held the co-worker was not a supervisor under Title VII and the employer was not held vicariously liable for her behavior towards Vance.
In University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ___ (June 24, 2013), the Supreme Court held a plaintiff must prove "but for" causation when bringing a Title VII retaliation claim and not merely a "motivating factor" -- the standard used in Title VII "status-based" discrimination claims. The "motivating factor" standard of causation applies in a discrimination case if an unlawful basis motivated the adverse action but was not the sole reason for the adverse action. After Nasser, retaliation claims require a stricter "but for" causation requirement -- the plaintiff would not have suffered the adverse action "but for" engaging in protected conduct. The Court stated this higher requirement will assist in reducing the amount of "ever-increasing" retaliation claims and allow employers to retain more resources to combat workplace harassment.
Importantly, both Vance and Nassar refused to defer to the EEOC's overbroad approach to statutory interpretation and guidance regarding the definition of supervisor and the retaliation causation requirement. The higher standards in these two cases give a significant victory to employers.