On June 24, the Supreme Court issued two significant, employer-friendly decisions which effectively raised the bar for employees pursing retaliation and harassment claims under Title VII.
University of Texas Southern Medical Center v. Nassar
In a sharply divided 5-4 ruling, the Court held in University of Texas Southern Medical Center v. Nassar, No. 12-484 that the “but-for” standard applies to retaliation claims under Title VII. At issue was whether the amendment to Title VII in the Civil Rights Act of 1991 that permits liability to be established in status-based discrimination claims by merely proving that “race, color, religion, sex or national origin” was a motivating factor for any adverse employment action or practice also applies to retaliation claims asserted under Title VII. The Court said no, explaining that in Title VII retaliation claims, plaintiffs must establish traditional “but-for” causation—in other words, that the employer’s allegedly retaliatory decision would not have been made had it not been for the alleged protected activity or discriminatory intent (e.g., the employee would not have been passed over for promotion had she not complained about gender discrimination in the workplace). The Court supported its decision by looking directly at the language of the 1991 provision that expressly extends to claims only of “race, color, religion, sex or national origin” and opined that had Congress intended to extend its “motivating factor” analysis to retaliation claims, as opposed to only the enumerated status-based claims, it would have expressly done so. The Court also looked at the real-world practicality that endorsing a lower standard of causation would only result in an even further exacerbation of an already ever-increasing number of retaliation claims filed in the recent years. In dissent, Justice Ginsburg fervently urged Congress to overturn the majority decision and to apply the same “motivating factor” analysis as status-based discrimination claims to Title VII retaliation claims.
Vance v. Ball State University
In another closely divided majority, the Court in Vance v. Ball State University, No. 11-556 endorsed a narrowly tailored definition regarding who is considered a “supervisor” for purposes of Title VII harassment claims. Here, the Court had to determine whether the “supervisor” liability rules established in earlier precedent applies to harassment by anyone the employer vests with the authority to direct and oversee the complainant’s daily work, or it if only applies to those alleged harassers who have the power to take tangible employment actions (such as hiring, firing, promoting, disciplining, etc.) against the complainant. The Court held that a “supervisor” is only defined as the latter—a person who merely has the authority to direct and oversee the complainant’s daily activities is not a supervisor for purposes of Title VII’s vicarious liability provisions. This decision is of critical importance because the Court has long established that an employer can be automatically liable for the harassing actions of a “supervisor” whereas, for co-worker harassment, an employer is only liable if it was negligent in preventing the alleged harassment. Justice Ginsburg for the dissent again argued that this ruling ignores the Court’s prior broad definition of “supervisor” and diminishes the Court’s prior decisions regarding the scope of an employer’s liability.
Seen as wins for employers, these rulings will make it more difficult for plaintiffs to prove their cases and provide further solid support for employers to seek summary judgment in retaliation and harassment claims. More importantly, employers now have clearer bright-line rules that will allow greater guidance in making legitimate business decisions as they navigate through today’s sometimes treacherous employment landscape.
