On June 24, 2013, the U.S. Supreme Court handed down two critical decisions regarding Title VII of the Civil Rights Act, which improve an employer’s ability to defend against employee claims of harassment and retaliation.
Vance v. Ball State University: Who’s the Boss?
Employers face Title VII liability when an employee is subjected to workplace harassment, and there is a sufficient connection between the harasser and the employer. Burlington Indus. v. Ellerth, 524 U.S. 742, 754-55 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). This connection is automatically established if the alleged harasser is the victim’s “supervisor.” See Ellerth, 524 U.S. 742, 755-58 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). However, for the past 15 years, lower federal courts and the Equal Employment Opportunity Commission (EEOC) have struggled to settle on a precise definition of the term “supervisor.”
The EEOC and several federal courts – including the Fourth Circuit Court of Appeals, which covers North and South Carolina – have defined “supervisor” broadly to include anyone with the authority to direct the alleged victim’s work activities. This authority was not limited to hiring and firing, but included things such as scheduling shifts or assigning daily tasks. Other courts, however, applied a more restrictive definition, limiting “supervisor” to those individuals who had the ability to make a tangible employment decision, i.e., to hire, fire, promote or demote the alleged victim. As we noted in our January 2013 update, the Supreme Court in Vance v. Ball State University was expected to resolve the dispute once and for all.
In that case, Maetta Vance, an African-American woman, sued her employer, Ball State University, under Title VII. Vance alleged that Ball State was liable because she was subjected to harassment by a white woman who had some authority to direct her daily activities, even though the woman did not have the authority to hire, fire, promote or demote her. The Supreme Court adopted the more restrictive – and employer friendly – definition of “supervisor” and held that only those who are “empowered by the employer to take tangible employment actions against the victim” are considered “supervisors” for the purposes of Title VII. Such tangible actions include “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” This framework, according to the Court, provides a bright-line rule for employers to determine which employees fall under “supervisory status,” enabling employers, employees, and courts to more readily determine that status. Therefore, the broader interpretation espoused by the EEOC and courts in North and South Carolina was effectively overruled.
This decision weakens an employee’s ability to establish the necessary connection between an alleged harasser and employer. However, employers are cautioned that this case does not insulate them from liability if their employees – supervisors or otherwise – create a hostile work environment or subject other employees to harassment. To fully benefit from this decision, employers should clarify in writing the duties and authority of their various managers and team leaders, especially those in middle management and lower-level leadership positions. All employees should be aware of the authority of all managers and supervisors and, as always, employees must be informed that harassment will not be tolerated and should be reported immediately. Additionally, employers should also have a written policy that retaliation against employees making good faith complaints will not be tolerated, as explained further below.
University of Texas Southwestern Medical Center v. Nassar: Retaliation Revisited
In a second opinion, University of Texas Southwestern Medical Center v. Nassar, the U.S. Supreme Court addressed the issue of what proof is required for an employee to establish that an adverse employment action, such as a termination or demotion, was caused by unlawful employer retaliation for the employee’s complaints about discrimination.
The plaintiff in Nassar was a staff physician at a university hospital who claimed he was being harassed and discriminated against by a supervisor based on his national origin and religion. To address the complaints, his employer initially granted his request to act as a staff physician without acting as a member of the university faculty, taking him outside the supervision of the alleged harasser. However, the offer was rescinded based on a policy requiring staff physicians to be faculty members. The plaintiff resigned and ultimately filed a lawsuit alleging that he was constructively terminated as a result of unlawful harassment and in retaliation for complaining about that harassment.
The issue before the Supreme Court was the causation standard applicable to retaliation claims. Under Title VII, plaintiffs making status-based discrimination claims – such as those alleging discrimination based on race, sex or national origin – need only prove that discrimination was a “motivating factor” in the employer’s decision to take adverse action in order to establish the claim. Discrimination need not be the only reason for the adverse action in order for the employer to be liable.
The EEOC has traditionally taken the position that this same lesser proof standard applies to retaliation claims, making it easier for plaintiffs to survive summary judgment and potentially recover on those claims. However, the employer in Nassar argued that statutory differences require retaliation plaintiffs to prove that retaliation was the “but for” cause of the adverse action – in other words, that the plaintiff would not have been terminated or demoted absent having engaged in protected activity, such as having made a discrimination complaint.
In a victory for employers, the Supreme Court agreed with the hospital and held that Title VII requires retaliation plaintiffs to prove that adverse action would not have occurred “but for” the employer’s desire to retaliate against the employee for having engaged in protected activity. The court reasoned that statutory and conceptual differences between the two types of claims – discrimination based on employee status versus retaliation based on voluntary employee conduct – dictated that retaliation claims be subject to stricter standards of causation that are traditionally required to succeed on legal claims. Moreover, the Court held that the increasing frequency of retaliation claims put a strain on employer and administrative resources, which would only increase by reducing the proof required to establish a claim.
Although this case will likely enable more employers to succeed on summary judgment for retaliation claims, Nassar does not change the legal elements required to establish a retaliation claim, nor does it have a significant effect on how employers should handle internal complaints of discrimination, harassment or retaliation. Instead, the Supreme Court’s rejection of a “mixed motive” retaliation claim reemphasizes the importance of clearly setting forth in writing all reasons for any adverse employment action taken against employees and ensuring that those reasons are legitimately related to the employee’s performance and business needs.