As the United States Supreme Court wraps up its term, employers should take note of three decisions issued this past Monday, June 24. Two decisions, Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar adopt employer-friendly holdings that promise to help employers defend against Title VII harassment and retaliation suits. A third case, Fisher v. University of Texas at Austin, has potential implications for employers that use affirmative action programs.
Vance v. Ball State University
In Vance, the Court considered who is a "supervisor" for purposes of determining an employer's vicarious liability for harassment under Title VII of the Civil Rights Act. The Court concluded that a "supervisor" is someone empowered by the employer to take tangible employment actions against the victim.
Under Title VII, an employer's liability for workplace harassment depends on whether the alleged harasser is a "supervisor" or a "co-worker." An employer is strictly liable for a supervisor's harassment if it results in a tangible employment action, and is presumed liable for other supervisor harassment unless it can prove that (1) it exercised reasonable care to prevent and promptly correct any harassing behavior and (2) the plaintiff unreasonably failed to take advantage of preventive or corrective opportunities that the employer provided. If the harasser is a co-worker, however, an employer is only liable if it was negligent in controlling working conditions.
Until Vance, lower courts and the EEOC had split over the question of who was a supervisor. The Eighth Circuit and others limited supervisor status to those with the power to hire, fire, promote, transfer or discipline, while the EEOC and other circuits expanded the definition of supervisor to include those with the authority to direct an employee's daily work activities. At issue in Vance was whether the alleged harasser, who had minimal authority to direct the plaintiff's work but no authority to take tangible employment actions against the plaintiff, was a supervisor.
Adopting the more narrow definition already favored by the Eighth Circuit, the Court concluded that the alleged harasser in Vance was not a supervisor and held that supervisors are those empowered to take tangible employment actions against the alleged victim (such as hiring, firing, failing to promote, reassigning significantly different responsibilities and making a decision causing a significant change in benefits). This bright-line test is good news for employers, as it will end costly litigation battles over who constitutes a "supervisor" and should make it easier to dismiss Title VII harassment suits as a matter of law. In light of Vance, employers should continue to maintain anti-harassment policies and internal complaint procedures, and they should review job descriptions to make sure anyone falling into the supervisor category receives proper training.
University of Texas Southwestern Medical Center v. Nassar
In Nassar, the Court held that a plaintiff must show that his or her protected activity was the but-for cause of an alleged adverse action in a Title VII retaliation case.
The Nassar plaintiff was a medical doctor who worked for the defendant University as both a member of the faculty and a staff physician at the University hospital. He reported to the University that his direct supervisor was biased against him because of his race and religion, and the plaintiff eventually resigned. Meanwhile, the University withdrew a different job offer it had made to the plaintiff to work solely as a staff physician, claiming that the offer was inconsistent with a requirement that all staff physicians also be members of the University faculty.
The plaintiff asserted two Title VII claims against the University: (1) race and religious discrimination and (2) retaliation for complaining about alleged discrimination. The Court held that, while a plaintiff must prove that an unlawful motive caused his or her injury for either type of claim, the causation standard that the plaintiff must meet is higher for retaliation claims. It was undisputed that, for status-based discrimination claims, a plaintiff need only show that the motive to discriminate was one of the employer's motives, even if the employer also had lawful motives for its decision. The plaintiff argued that the mixed-motive test also applied to Title VII retaliation claims.
The Court disagreed, holding that to prevail on a retaliation claim, a plaintiff must prove that his or her protected activity was the but-for cause of the alleged adverse action by the employer. The Court based its decision on the text, structure, and history of Title VII, and warned that the motivating-factor standard could contribute to the filing of frivolous retaliation claims. This case could have a ripple effect on claims brought under other employment laws that lack language calling for a mixed-motive causation standard, such as the Americans with Disabilities Act and the Family and Medical Leave Act.
Fisher v. University of Texas at Austin
Employers who utilize affirmative action programs should take note of the Court's decision in Fisher. The Fisher plaintiff challenged the consideration of race in undergraduate admission decisions by the defendant University under the Equal Protection Clause of the Fourteenth Amendment. The Court reversed the lower court's grant of summary judgment for the University, holding that the lower court had not properly applied the strict scrutiny test to the University's race-conscious program. While the case centered on affirmative action in the context of higher education—not employment—it demonstrates the Court's increasing scrutiny of affirmative action programs generally.