This week the Supreme Court issued three decisions that may significantly impact federal contractors and other employers:

In Fisher v. University of Texas, No. 11-345 (U.S. June 24, 2013), the Supreme Court held that a university admissions program using racial categories must survive “strict scrutiny” review. In other words, a university must show that no workable race-neutral alternatives would produce the educational benefits of diversity that the university seeks. Because the court of appeals decision upholding the university’s affirmative action plan incorrectly gave deference to the university’s evaluation of its own admissions program, the Court remanded the case back to the court of appeals to conduct the strict scrutiny review, including an evaluation of whether the admissions program was narrowly tailored to meet its educational goals. Although Fisher did not involve a federal contractor, it offers some insights on how the Court might view race-conscious affirmative action and diversity programs of employers. Proskauer’s full alert regarding Fisher can be found here. 

In University of Texas S.W. Med. Ctr. v. Nassar, No. 12-484 (June 24, 2013), the Court found that, to prove retaliation under Title VII, an employee must show that the employee’s complaint of discrimination was the “but for” cause of the employer’s adverse action. Some courts had allowed an employee to prove such claims by showing only that the employee’s protected activity was a “motivating factor” for the adverse employment action. A further analysis of Nassar can be found here.

Finally, in Vance v. Ball State University, No. 11-556 (U.S. June 24, 2013), the Court held that an employee is a “supervisor” for purposes of vicarious employer liability for harassment under Title VII only if the employer empowers that person to take tangible employment actions such as hiring, firing, promoting or transferring. The decision limits the class of employees who will be considered “supervisors” under Title VII’s vicarious liability standard. A further analysis of Vance can be found here.