On June 24, 2013, the United States Supreme Court issued two employer-friendly opinions that substantially narrow potential liability for claims of supervisor misconduct and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”).
In Vance v. Ball State University, 570 U.S. ____ (June 24, 2013), the Supreme Court, by a 5-4 decision, greatly restricted the definition of a “supervisor” in the context of establishing employer vicarious liability under Title VII. The case involved a claim by Maetta Vance, an African-American catering assistant at Ball State University, who alleged racially hostile conduct and retaliation by a co-worker, Saundra Davis. While Davis’ specific duties were disputed, it was clear that she lacked the power to “hire, fire, demote, promote transfer or discipline” Vance. Defining whether Davis was Vance’s “supervisor” was the critical question before the Court because an employer is strictly liable for a “supervisor’s” harassment of an employee if the harassment “culminates in a tangible employment action” (i.e., significant changes in employment status, such as firing, failing to promote or reassigning). Without a tangible employment action, the employer can assert an affirmative defense to liability by demonstrating that: (1) the employer exercised reasonable care to prevent and correct the harassment, and (2) the victim unreasonably failed to take advantage of the employer’s preventative or corrective opportunities (see Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. Boca Raton, 524 U.S. 775 (1998)). On the other hand, if the harassing employee is merely the victim’s co-worker and not a supervisor, the employer will only be directly liable if it is found negligent in its efforts to control working conditions.
With this framework in mind, the Court rejected the “nebulous definition of ‘supervisor’” advocated by the dissenting justices and guidelines issued by the EEOC, which tie “supervisor” status to the ability of the individual to exercise significant control or direction over another’s daily work. Instead, the Court ruled in favor of the more definitive test based upon a finding of some “tangible employment action”. The Court made abundantly clear that its decision was grounded in concerns for efficiency and to delineate a more readily discernible definition of “supervisor” that could be determined as a matter of law at the summary judgment stage of a case or at trial. This was in contrast to the highly fact-specific, ill-defined definition endorsed by the EEOC. Though other factors may contribute to whether someone is viewed by co-workers as a “supervisor”, the Court found “tangible employment action” authority to be the “defining characteristic”, and one which could easily be applied by a judge or jury. In applying this standard, the Court concluded that, because there was no evidence Davis directed Vance’s day-to-day activities or set her work schedule, Davis was not Vance’s “supervisor” for purposes of determining employer vicarious liability under Title VII.
In conjunction with Vance, the Supreme Court’s decision in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ____ (June 24, 2013), provides employers with additional ammunition for defeating retaliation claims under Title VII, resulting in potential cost savings for employers faced with such lawsuits. The Nassar Court determined that, to successfully prosecute a retaliation claim under Title VII, a plaintiff must satisfy the higher “but-for” causation standard, rather than the lesser “motivating factor” test applied in status-based discrimination cases. As recognized by the Court, the heightened standard may assist employers in dismissing such claims before trial and may discourage frivolous claims at the outset.
Specifically in Nassar, the plaintiff, a medical doctor of Middle Eastern descent, filed a Title VII retaliation claim against his employer, an academic institution within the University of Texas. In that suit, the plaintiff claimed his supervisor had attempted to prevent an employer from hiring him because of the plaintiff’s complaints against that superior of alleged status-based discriminatory harassment. During trial, the jury ruled in favor of the plaintiff. On appeal, the Fifth Circuit Court of Appeals affirmed, in part, determining the plaintiff, in order to prevail, only needed to prove that retaliation was a “motivating factor” for the adverse action taken against him. The Supreme Court disagreed, however, determining the statutory language required the plaintiff to demonstrate the retaliation was the “but-for cause” of the employment action at issue. In other words, as the Court explained, this heightened standard “requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”
The Supreme Court in Nassar recognized the influential nature of the decision for employers, noting that retaliation based claims have nearly doubled from 1997 to 2012. By making clear that retaliation claimants must fulfill the higher “but-for” causation standard utilized in most tort cases, the Supreme Court’s decision provides employers with additional grounds to seek early dismissal of retaliation claims.
Both the Vance and Nassar decisions will likely have a far-reaching impact on employer discrimination and retaliation claims. While neither case appears to have been decided with the specific goal of discouraging plaintiffs from filing harassment and retaliation claims, the Supreme Court clearly sought to promote efficiency and reduce the burden on employers from defending tenuous claims brought by employees.