The U.S. Supreme Court issued two closely watched decisions Monday affecting Title VII cases. The first case, Vance v. Ball State University, involved the issue of who is a supervisor under Title VII in cases of harassment. The second, University of Texas Southwestern Medical Center v. Nassar, concerned what employees must prove in retaliation cases about the connection between the adverse employment action and the employer’s improper motive. In both cases, the result was a 5-4 decision favoring the employer’s position. Together, they provide some unusual good news for managing employment discrimination claims.
Vance v. Ball State University – who is a supervisor under Title VII?
In Vance, the employee was an African-American woman who worked as a food server at University events. She made multiple complaints against Davis, a co-worker who had some additional duties akin to being a “lead” person, but lacked authority to hire, fire, demote, promote, transfer or discipline Vance. The lower courts had found that because Davis lacked authority to perform any of those functions with respect to Vance, Ball State’s liability as employer for harassment, if any, depended on proof that it was negligent in failing adequately to address Vance’s complaints against Davis. The courts found that Ball State had not been negligent, requiring judgment for the employer.
Vance contended that because Davis had certain lead person responsibilities, she was not a co-worker, but a supervisor, triggering the different rules for supervisor harassment established by the Court in the 1998 companion cases of Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton. Readers may recall that under Ellerth and Faragher, the Court held that an employer is automatically liable for hostile environment by a supervisor unless the employer can prove that 1) it exercised reasonable care to prevent and correct any harassing behavior, and 2) the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer. (As we frequently remind our clients, “reasonable care” means both having in place a process by which employees can seek redress for perceived harassment, and educating the workforce about that process through periodic training and frequent communication.)
The Supreme Court concluded that based on its prior decisions, including Ellerth and Faragher, the automatic liability that accompanies supervisor harassment should not apply unless the alleged supervisor had sufficient authority to take “tangible employment action” – namely, one of the list of actions described above. In so ruling, the Court rejected the EEOC’s position as reflected in its Enforcement Guidance on this issue.
The distinction between requiring an employee to prove employer negligence in cases of co-worker harassment on the one hand and requiring an employer to prove reasonable care and employee failure to seek redress in cases of supervisor harassment on the other may seem minor, but in the litigation world it is very significant. In this case, for example, it meant the difference between summary judgment for the employer versus a trial in which the employer would have had to prove its Faragher defense.
Employers should be very clear about what authority they allow employees to exercise over others. In the majority opinion, for example, Justice Alito noted that whether someone is a supervisor under Title VII ought to be easily discernible from “written documentation” – presumably job descriptions or related writings. Because it is now clear that mere ability to assign work is not sufficient to establish a supervisory relationship under Title VII, we suggest a review of how job descriptions explain a position’s authority so that it will be clear to a third party arbiter just what a position’s authority is – or, more importantly, is not.
University of Texas Southwestern Medical Center v. Nassar – what is required to prove a retaliatory motive “caused” an adverse employment action?
Through a combination of prior decisions and Congressional amendments to Title VII, employees in Title VII disparate treatment cases need only prove that discriminatory animus was a “motivating factor” in an employment decision; they do not have to prove that the decision would not have happened “but for” the animus, but only that the animus was a factor in the decision, along with other non-discriminatory reasons. So for example, a terminated employee could prevail by showing that a decision maker’s discriminatory animus toward his or her protected status was “a motivating factor” even if a legitimate, non-discriminatory reason (such as poor performance) also existed so that the termination would have taken place anyway.
In Title VII retaliation cases, however, the Court had never established what employees had to prove with regard to “causation” of the challenged employment decision. The relevant section of Title VII provides that to prove retaliation a plaintiff must prove the decision occurred "because of" the plaintiff's protected activity. With its Nassar decision, the Court has resolved a disagreement among lower federal courts by holding that this language means that a retaliation plaintiff must prove that the adverse employment action would not have occurred “but for” a retaliatory motive.
Dr. Naiel Nassar is a medical doctor of Middle Eastern descent who worked both as a University of Texas faculty member and as a staff physician at Southwestern Medical Center. Under the University’s and Hospital’s affiliation agreement, the Hospital is required to fill staff positions with University faculty. Dr. Nassar claimed that an indirect supervisor, Dr. Beth Levine, was biased against his religion and ethnic background. He sought to get out from under her supervision by resigning his position on the faculty, and obtained an offer from the Hospital for another position as a staff physician. When he wrote a letter to Dr. Levine’s supervisor, Dr. Fitz, announcing his partial resignation and assigning Dr. Levine’s alleged harassment as the reason; Dr. Fitz insisted that the affiliation agreement prevented the arrangement. The Hospital withdrew its offer, leaving Dr. Nassar unemployed.
Nassar sued for both constructive discharge, based on the alleged harassment by Dr. Levine, and retaliation based on the theory that Dr. Fitz fired him for complaining about Dr. Levine’s harassment. A jury found for Nassar on both claims, but the Court of Appeals for the Fifth Circuit vacated the constructive discharge claim. However, the Fifth Circuit held that because causation in Title VII retaliation claims should be treated the same as in disparate treatment claims, it upheld the retaliation verdict.
The Supreme Court reversed, holding that the lower courts were wrong to apply the “a motivating factor” causation test because “but for” causation was the correct test for retaliation cases. The Court said that the “default rules” for any tort claim is “but for” causation, meaning that the harm would not have happened in the absence of the wrongful conduct of the defendant. Because Title VII was enacted in this long-standing context, the same rule should apply unless the language of Title VII were to state otherwise. The majority held that the default rule of “but for” causation applies. It relied substantially on the analysis it previously offered in Gross v. FBL Financial Services, Inc., in which it ruled on the same question with regard to age discrimination claims, which are created by the ADEA and are not part of Title VII.
Like the decision in Vance, this ruling improves the chance of obtaining summary judgment. Often retaliation cases are about the timing of an adverse employment decision in relation to some alleged protected activity (in this case, the claim of harassment in the faculty resignation letter). If, however, there is strong evidence of another, lawful motive (in this case, the terms of the affiliation agreement), the employee must prove that the lawful motive played no meaningful role in the decision. Employers will surely find this preferable to having to convince a jury that the alleged retaliatory motive played no part in an employment decision. Perhaps more importantly, this decision should make the settlement of retaliation cases more achievable.
It is important to note that both of these cases arose under Title VII, and directly affect only cases under that statute. With regard to supervisors, the Maine Human Rights Act (MHRA) defines “supervisor” somewhat differently from Title VII, and while Vance will prove helpful to employers’ arguments on who is a supervisor under the MHRA, it is difficult to predict how Maine’s highest court would rule on this issue. With regard to retaliation claims under Maine law, we note that the MHRA employs the same “because of” language relied on in Gross and Nassar. Thus Nassar provides further support for employers arguing in favor of “but for” causation in defense of claims arising under Maine law. However, until the Law Court renders a decision on this issue employers and employees will continue to argue competing interpretations on the issue of causation. All in all, these decisions represent much-needed “wins” for employers.