Supreme Court Makes Defending Title VII Cases Easier For Employers; Decides To Review Noel Canning, Will Rule On NLRB Recess Appointments

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On June 24, 2013, the U.S. Supreme Court issued opinions in two cases which are clear victories for employers. First, in Vance v. Ball State University, the Supreme Court held that “an employer may be vicariously liable for an employee’s [i.e. supervisor’s] unlawful harassment 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.”  The Supreme Court rejected the “nebulous definition” of a “supervisor” advocated by the EEOC and substantially adopted by several courts of appeals, which ties supervisor status only to the ability to exercise significant direction over another’s daily work.  Second, in University of Texas Southwestern Medical Center v. Nassar, the Supreme Court held that plaintiffs in Title VII retaliation claims must prove that their employers would not have taken an adverse employment action against them but for their exercise of a protected activity.  This ruling represents a rejection of the more lenient “motivating factor” test previously used by some federal circuits, which only required an employee to show that the motive to retaliate was one of the employer’s motives, even if not the decisive factor.   These two decisions will significantly aid employers in defense of harassment and retaliation claims.  Finally, to little surprise, the Supreme Court also agreed to review Noel Canning, which invalidated three of President Barack Obama’s recess appointments to the National Labor Relations Board.  We previously wrote about the impact of Noel Canning, as well as the similar decision by the Third Circuit in New Vista Nursing and Rehabilitation, here.  The appeal will likely be argued in the fall, with a decision expected thereafter.