Just recently, the United States Supreme Court issued two decisions affecting employers where employees allege unlawful retaliation or harassment under Title VII. In University of Texas Southwestern Medical Center v. Nassar, the Court held that for an employee to prove he or she was retaliated against by his or her employer, the employee must prove that “his or her protected activity was a but-for cause of the alleged adverse action by the employer.” 2013 U.S. Lexis 4704, *42 (2013) (emphasis added). In other words, the employee must prove that the employer would not have made the alleged retaliatory employment action but for the desire to retaliate against the employee. Toughening the causation standard will likely make it more difficult for plaintiffs to prove claims of unlawful retaliation under Title VII.
The Supreme Court issued a second decision benefitting employers in Vance v. Ball State University. 2013 Lexis 4703 (2013). This time, the Court addressed the standard for holding an employer liable when its employees unlawfully harass fellow employees. First, it is important to note that an employer may be found liable for unlawful harassment if it is negligent with respect to such conduct among employees. However, when an employer is entirely unaware of any unlawful harassment, whether the employer may be held liable for a harassing employee’s actions depends on the employee’s position. In Vance, the Court held that only supervisors, meaning employees with authority to “take tangible employment actions against the victim,” such as the ability to hire, fire, promote, or reassign, may impute liability to their employer for harassment. Id. at *17-*18. This narrower scope of “supervisor” means that fewer employees may create liability for their employers for under Title VII.