A Summary of the U.S. Supreme Court Decisions This Week Which Will Affect Employers

by Miller & Martin PLLC

Windsor v. United States

Issue: Can the federal government define marriage?

Holding: No.

Loser: The federal Defense of Marriage Act (DOMA), which was passed in 1996 and signed by President Clinton, was expressly overturned by this decision.

Impact on Employers: Federal benefits such as leave provided under the Family and Medical Leave Act (FMLA) will now be subject to individual states’ definitions of marriage. Because many employee benefits also are governed by federal law through ERISA, employers will no longer be able to rely on the DOMA as their basis for denying same-sex couples the same benefits as heterosexual ones (assuming such couples are legally married in a state which recognizes the same). Same-sex couples who are lawfully married in states which recognize the same also will now be treated the same as heterosexual married couples for federal income tax and Social Security survivor benefit purposes along with receiving other federal law benefits and protections which are based on marital status.

Hollingsworth, et.al. v. Perry, et.al.

Issue: Can the citizens of individual states decide for themselves through referendum elections how the state should define marriage?

Holding: No ruling on this issue. The Court held that those suing to uphold California’s Proposition 8 referendum, which resulted in the citizens of that state choosing not to recognize same-sex marriage, had no standing to do so.

Loser:  It is hard to tell at this stage, as for now at least Proposition 8 remains struck down (as it was deemed unlawful at the trial court level, which then gave rise to the appeal which resulted in today’s Supreme Court decision), such that the door is now open for same-sex marriage to be legal in the State of California.

Impact on Employers: This decision enables employers to continue to follow the laws of the states in which they have employees regarding who is legally recognized as being “married” or otherwise eligible for the protection and any benefits provided by state laws on this basis. However, as noted in the previous case note, for those employers who have employees in multiple states, some of which recognize same-sex marriage while others do not, they can consistently maintain the benefits and other protections which are provided by federal law across the board for all employees who are lawfully “married.” Multi-state employers already are accustomed to having to remain aware of the differences in state laws in such areas as workers’ compensation and various types of leave, which may only be provided in a few states, etc., such that, while not always easy, applying a state-by-state definition of marriage (at least for now) is not an insurmountable task. 

Vance v. Ball State

Issue: Who is a “supervisor” for purposes of Title VII harassment cases?

Holding: A “supervisor” must actually have the power to take a tangible employment action against the allegedly harassed employee – hiring, firing, promoting, demoting, reassignment to significantly different responsibilities, and/or causing a significant change in benefits.

Loser: The EEOC – who had urged a broader standard (i.e., that any employee who plays any role in the supervision of the allegedly harassed employee should constitute a “supervisor” in the context of Title VII harassment claims).

Impact on Employers: The Supreme Court has previously distinguished which defenses are available to employers who are accused of harassment based in part on who is alleged to have harassed the plaintiff employee. If the alleged harassment was committed by a supervisor and a tangible employment action was taken against the plaintiff (termination, demotion, etc.), then the employer has no affirmative defenses to the harassment claim. All the employer can try to argue at that point is (1) that the harassment did not happen, (2) was welcome/consensual, and/or (3) was not sufficiently pervasive so as to alter the terms and conditions of the plaintiff’s employment or unreasonably interfere with his/her work performance as a matter of law. If, by contrast, the alleged harassment was committed by a co-worker, the employer also has the affirmative defense available of being able to show (1) it had taken reasonable affirmative steps to prevent or remedy the harassment, and (2) the plaintiff employee unreasonably failed to take advantage of the protections of the same by not reporting the alleged harassment, etc. Thus, the fact that the question of “who is a supervisor” has been answered narrowly by the Supreme Court presumably will avail this affirmative defense to employers in more harassment cases than if “anyone who had any role in any employment decision regarding a plaintiff” had been deemed to be one.

University of Texas Southwestern Medical Center v. Nassar

Issue: What legal standard should be applied to “retaliation” claims under Title VII?

Holding: A “but for” causation standard.  This means “retaliation” claims cannot be proven through “mixed motive” arguments (i.e., “yes, my attendance was part of the reason I was fired, but it also was because I reported an unlawful activity or otherwise participated in an investigation of an alleged Title VII violation). Employees claiming “retaliation” under Title VII must be able to show that “but for” such reports or participation they would not have been terminated, disciplined, etc. – not merely that this “could have been part of the reason.”

Loser:  The EEOC – who had urged that the same lower “substantial motivating factor” standard used to establish employer liability for discrimination claims under Title VII should be used to establish Title VII retaliation claims.

Impact on Employers: The full impact of this decision remains to be seen as it evolves through future lower court decisions. Specifically, it remains to be seen whether lower courts will interpret this decision to mean that plaintiff employees must bring retaliation claims under Title VII exclusively (i.e., they cannot pursue “kitchen sink” type complaints where Title VII discrimination claims, state law retaliation and discrimination claims, etc. are “lumped together” with Title VII retaliation claims in hopes that as the record is developed through discovery “some claim(s) will stick”). The Court recognized a similar “but for” causation standard regarding ADEA (federal age discrimination) claims in 2009 in Gross v. FBL Financial Services, Inc. Since then, lower federal courts have used the Gross decision to hold that plaintiffs cannot merely “lump” ADEA claims together with others – that the “but for” causation standard recognized in Gross means “just what it says” – that in order to establish a “but for” level of causation, a plaintiff must allege that “but for” age discrimination he/she would not have been terminated, etc. – not just that “age discrimination was one of many possible explanations for his/her termination or other adverse employment action.” Employers are obviously hopeful that the same proves to be true in the lower courts regarding this new Nassar decision in the context of Title VII retaliation claims.

The advantage employers already have gained through Nassar on its face should not be undervalued, however. As, in most retaliation suits, the employer has a legitimate non-retaliatory reason for taking the adverse employment action at issue. Under Nassar, unless the employee can disprove this stated reason (rather than merely saying “ok, I did that too but the real reason they fired me, etc. was in retaliation for this Title VII violation I reported, etc.), their Title VII retaliation claim will be dismissed.

Fisher v. The University of Texas at Austin

Issue: Can affirmative action still be used in a public school’s admissions process?

Holding: No ruling on this issue. The Court instead remanded the case back to the Fifth Circuit Court of Appeals with instructions to use the higher standard of “strict scrutiny” in order to determine whether the use of affirmative action was justified or not by the University of Texas at Austin in its student admissions process.

Loser: The Fifth Circuit Court of Appeals -- who now has to reconsider this case.

Impact on Employers: This case serves as a reminder that there must be a reason for affirmative action (usually a documented history of underrepresentation of a minority group). Otherwise, schools (and potentially both public and private employers) are not going to be able to pass the “strict scrutiny” test the Court has reminded the Fifth Circuit (and all other courts) to apply when considering whether affirmative action is still needed.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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