INTRODUCTION. The U.S. Supreme Court has issued two significant employment decisions: Vance v. Ball State University (addressing the issue of who is properly called a "supervisor" when assessing workplace harassment claims); and University of Texas Southwestern Medical Center v. Nassar (addressing the proper test for proving unlawful workplace retaliation).
Vance v. Ball State University
CO-WORKER V. SUPERVISOR HARASSMENT. Title VII of the Civil Rights Act of 1964 has previously been interpreted by the Supreme Court to include a prohibition against harassment in the workplace on the basis of gender, that is, a prohibition against creating a working environment heavily charged with gender discrimination. Other courts have expanded this prohibition to include harassment based upon race, religion, national origin or color. In the Vance case, the Supreme Court was willing to assume that racial harassment was covered by the law.
In recognizing the existence of a claim of harassment, the Supreme Court has further indicated that an employer's potential liability for a claim of workplace harassment depends upon whether the accused harasser is a co-worker or a supervisor. Therefore, under this two-part test, the employer is liable for the actions of an allegedly harassing co-worker only if the employee shows the employer was negligent in controlling working conditions by being in a position that it knew or should have known of harassing conduct, but failed to take prompt remedial action to stop the harassment.
TANGIBLE EMPLOYMENT ACTIONS BY SUPERVISORS. On the other hand, the employer is "strictly liable" (that is, liable regardless of the employer's ability to step in to prevent or remedy the harassment) for the alleged harassing actions of a supervisor where the supervisor's conduct culminated in a "tangible employment action." The Court has defined "tangible employment action" to mean a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or significantly changing benefits."
If the employer can demonstrate that a supervisor has not taken a "tangible employment action," then the employer might escape Title VII liability by establishing (1) that it exercised reasonable care to prevent and correct any harassing behavior, and (2) that the complaining employee unreasonably failed to take advantage of the opportunities provided by the employer.
WHO IS A SUPERVISOR? Therefore, the status of the accused harasser makes a big difference in evaluating the potential liability of an employer confronted with a harassment claim.
The Supreme Court in the Vance case squarely confronted this issue. It held that an employee is a "supervisor" for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the employee. In adopting this straightforward approach, the Court specifically declined to adopt the approach recommended by the Equal Employment Opportunity Commission that tried to combine how many assignments one individual could make to another with a consideration of how long a period of time the individual could oversee the work of a co-worker. The Court further refused to apply a standard based upon the "label" an employee might be given in the workplace, recognizing that frequently someone who oversees the work of another might nevertheless fail to possess the power to take a "tangible employment action" without the approval of someone higher up in the chain of command.
IMPACT OF THE TEST UPON THE HARASSMENT CLAIM. Applying this standard to the facts before it, the Court found that Ms. Vance had failed to demonstrate that the alleged harasser (of a different race) was her supervisor. Ms. Vance's claims consisted of complaints about the co-worker's "glaring at her, intimidating her, and trying to block her from doing her work." Ms. Vance admitted that the co-worker in question did not have the power to hire, fire, demote, promote, transfer or discipline her.
The result was that the Supreme Court upheld the determination that the employer could not be strictly liable for the harassment complained of by Ms. Vance.
University of Texas Southwestern Medical Center v. Nassar
The Supreme Court also issued its decision in University of Texas Southwestern Medical Center v. Nassar. The ruling elevates the standard employees must meet to pursue a retaliation claim successfully under Title VII of the Civil Rights Act of 1964. The result is that employees will no longer be able to prevail on retaliation claims merely by demonstrating that retaliation was a "motivating factor" in the employer's adverse employment action (such as termination or demotion) towards the employee. Instead, employees will now have to demonstrate that the adverse employment action would not have happened "but for" the employer's intention to retaliate.
FACTUAL BACKGROUND. In the Nassar case, Dr. Nassar, who is of Middle Eastern descent, was hired by the University of Texas Southwestern Medical Center (UTSW). Dr. Nassar alleged that one of his supervisors questioned his productivity and other aspects of his employment. Dr. Nassar also alleged that the supervisor made remarks about his national origin.
For these and other alleged reasons, Dr. Nassar ultimately resigned, citing the supervisor's harassment and the creation of an unhealthy work environment. He then pursued a job at another hospital, but that hospital withdrew its job offer after one of his former UTSW supervisors opposed it.
CLAIMS FILED BY DR. NASSAR. Dr. Nassar eventually sued UTSW for violations of Title VII, claiming that the medical center had constructively discharged him and had also retaliated against him by encouraging the successor hospital to withdraw his job offer because of his complaints of discrimination. A jury found in favor of Dr. Nassar on both the discrimination and retaliation claims.
UTSW then appealed to the U.S. Court of Appeals for the Fifth Circuit, which has jurisdiction over cases arising in Texas. As sometimes happens in retaliation cases, the appellate court concluded that there was insufficient evidence of discrimination but sufficient evidence that retaliation was a "motivating factor" behind UTSW's actions in allegedly discouraging another hospital from hiring Dr. Nassar.
"BUT FOR" CAUSATION REQUIRED FOR RETALIATION CLAIMS. The Supreme Court yesterday ruled in favor of UTSW. Its opinion acknowledged that Congress had amended Title VII in 1991 to say that an employee could establish a discrimination claim by demonstrating that race, color, religion, sex or national origin was a "motivating factor," even though other factors may also have motivated the discriminatory conduct. The Court explained further, however, that the statute made clear that the "motivating factor" provision only applied to claims of "discrimination" rather than claims of retaliation. Therefore, the Court concluded that the traditional "but for" causation test stands as the only proper standard for proving retaliation claims.
CONCLUSION. As a result of the Court's decision in the Vance case, employers should take care when identifying their workplace chain of command to the workforce, and should specifically try to describe in their Personnel Manuals or Workplace Handbooks available avenues by which an employee can bring to their attention promptly the existence of any harassing conduct. In doing so, employers should also take care to identify who in the workplace possesses ultimate authority over actions that are within the definition of "tangible employment actions." A well-crafted process by which an employee can complain of improper treatment within the company, which makes clear that only upper management can review or take tangible employment actions, will go a long way towards narrowing the company's exposure for a claim of supervisor harassment.
The Nassar decision unquestionably complicates an employee's efforts to sue for retaliation successfully. Both decisions will potentially have an impact beyond claims filed under federal law. The Texas Commission on Human Rights Act was adopted to provide employees with a separate cause of action for discrimination and for retaliation under Texas law. When the Legislature enacted this law, it specifically indicated that Texas courts were to adopt the reasoning and holdings of federal courts in interpreting the provisions of the Texas law. Texas courts must now take note in cases involving claims of harassment or retaliation the standards established by the U.S. Supreme Court in the wake of the Vance and Nassar rulings.
Employers should also note that while Dr. Nassar was found not to have brought a meritorious discrimination claim, his retaliation claim nevertheless was upheld in the lower courts. Employers should therefore ensure that procedures are in place to avoid giving the appearance that adverse employment actions are taken against present or former employees on the basis of their engaging in activities which are protected under Title VII.
