The United States Supreme Court (“Court”) issued two decisions on June 24, 2013, significantly limiting employer liability in discrimination cases brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). In Vance v. Ball State University, No. 11-556, the Court limited employer liability for hostile work environment claims by adopting a limited interpretation of who qualifies as a supervisor under Title VII. In University of Texas Southwestern Medical Center v. Nassar, No. 12-484, the Court held that to prevail on a retaliation claim under Title VII, a plaintiff “must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.” In both cases, the Court rejected the Equal Employment Opportunity Commission’s (“EEOC”) published guidelines. As a result of these decisions, employers will be able to better defend against hostile work environment and retaliation claims under Title VII, which prohibits employment discrimination on account of race, color, religion, sex or national origin.
Vance v. Ball State University
In Vance, the Court resolved the issue of when an employee qualifies as a supervisor under Title VII. That issue is important because an employer’s liability for a hostile work environment under Title VII depends on whether the alleged harasser is a supervisor or merely a co-worker. If the alleged harasser is a co-worker, the employer is liable only if the employer was negligent in permitting the harassment to occur. Different rules apply if the alleged harasser is a supervisor. The employer is strictly liable for a supervisor’s harassment if it culminates in a tangible employment action (i.e., a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits). If the supervisor’s harassment does not result in a tangible employment action, the employer is still subject to strict liability but may avoid liability by establishing the affirmative defense that it exercised reasonable care to prevent and correct any harassing behavior, such as having a policy against harassment and a complaint procedure, and that the employee unreasonably failed to take advantage of such a policy. Thus, an employer is subject to stricter liability for the acts of a supervisor as compared to those of a co-worker.
The plaintiff in Vance alleged that she was racially harassed by another employee, who she claimed was a supervisor because the other employee had a leadership role in the kitchen in which the plaintiff worked and the authority to direct the plaintiff and other employees in their work. The plaintiff argued that this authority qualified the alleged harasser as a supervisor, thereby subjecting the employer to strict liability for the alleged harasser’s conduct. The trial court ruled that the alleged harasser was not a supervisor because she did not have the authority to “hire, fire, demote, promote, transfer, or discipline” the plaintiff. On appeal, the Seventh Circuit Court of Appeals affirmed the trial court’s decision. The Seventh Circuit’s decision was contrary to the decisions of several other Courts of Appeals, as well as the position of the EEOC, that authority to direct others in their work could qualify an employee as a supervisor. In resolving this conflict, the Court affirmed the decision of the Seventh Circuit and held that an employee qualifies as a supervisor “only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”
By defining supervisors as only those employees who have the authority to take concrete employment actions against other employees, the Court’s decision significantly limits the number of employees for whose conduct an employer may be held strictly liable for harassment under Title VII. As a result, employers will no longer be subject to strict liability under Title VII for the harassing conduct of employees who merely possess oversight responsibilities in the workplace, such as the authority to direct others in their work, but who lack the authority to take tangible employment actions against other employees.
University of Texas Southwestern Medical Center v. Nassar
In Nassar, the Court decided that Title VII retaliation claims are subject to the higher “but for” causation standard, rather than the more lenient “motivated in part” standard for discrimination claims based on an employee’s protected status. The “but for” standard requires that a plaintiff prove that an employee’s challenged conduct would not have happened in the absence of a desire to retaliate. The “motivated in part” standard allows a plaintiff to prove discrimination based on a protected category simply by proving that the employer’s challenged conduct was motivated in some part by the employee’s protected status.
The plaintiff in Nassar was a physician of Middle Eastern descent who was a faculty member of the University of Texas Southwestern Medical Center (“University”). He was also on the staff of the Parkland Memorial Hospital (“Hospital”) under an affiliation agreement between the University and the Hospital. The plaintiff believed that his supervisor was biased against him because of his religion and ethnic heritage. He complained about his supervisor by sending a letter to his second-level supervisor and others at the University in which he accused his supervisor of harassing him because she was biased against Arabs and Muslims. The plaintiff then resigned from the University and as a result, also lost his position at the Hospital under the affiliation agreement. He then separately applied to and was offered a job by the Hospital as a staff physician. The plaintiff’s former second-level supervisor, to whom he had complained, objected to the Hospital’s job offer, asserting that it was contrary to the affiliation agreement that required all Hospital staff physicians to be members of the University faculty. The Hospital then withdrew the offer and the plaintiff sued the University, alleging retaliation for causing the loss of the job offer.
At trial, the jury found that the University had retaliated against the plaintiff. On appeal, the Fifth Circuit Court of Appeals affirmed the jury’s verdict based on evidence that when the second-level supervisor caused the Hospital to withdraw the job offer he was motivated, at least in part, by a desire to retaliate against the plaintiff for complaining about his supervisor. The University then appealed to the Court on the ground that the courts below applied the wrong standard on the plaintiff’s retaliation claim and that they should have applied instead the higher “but for” causation standard requiring the plaintiff to prove that the University would not have objected to his employment with the Hospital in the absence of a desire to retaliate against him.
On appeal, the Court agreed with the University. The Court held that a plaintiff cannot succeed on a Title VII retaliation claim by merely proving that a desire to retaliate played some part in the employer’s challenged conduct, but that instead a plaintiff must prove that his/her employer would not have taken the challenged conduct “but for” an intent to retaliate. That is, the plaintiff must prove that his/her employer would not have engaged in the challenged conduct in the absence of a desire to retaliate. In reaching its decision, the Court relied on the language in Title VII governing retaliation claims that prohibits retaliation “because [an employee] has opposed any practice . . . or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub-chapter.” As a result, Title VII retaliation claims will now be subject to the higher “but for” causation standard, rather than the more lenient “motivated in part” standard for discrimination claims based on an employee’s protected status. This decision also harmonizes the standard for Title VII retaliation claims with that applied to retaliation claims under the Age Discrimination in Employment Act.