Employment And Labor Insight: Employers Win Big Before The U.S. Supreme Court

by Stinson Leonard Street

As the United States Supreme Court wraps up its term, employers should take note of three decisions issued this past Monday, June 24. Two decisions, Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar adopt employer-friendly holdings that promise to help employers defend against Title VII harassment and retaliation suits. A third case, Fisher v. University of Texas at Austin, has potential implications for employers that use affirmative action programs.

Vance v. Ball State University

In Vance, the Court considered who is a "supervisor" for purposes of determining an employer's vicarious liability for harassment under Title VII of the Civil Rights Act. The Court concluded that a "supervisor" is someone empowered by the employer to take tangible employment actions against the victim.

Under Title VII, an employer's liability for workplace harassment depends on whether the alleged harasser is a "supervisor" or a "co-worker." An employer is strictly liable for a supervisor's harassment if it results in a tangible employment action, and is presumed liable for other supervisor harassment unless it can prove that (1) it exercised reasonable care to prevent and promptly correct any harassing behavior and (2) the plaintiff unreasonably failed to take advantage of preventive or corrective opportunities that the employer provided. If the harasser is a co-worker, however, an employer is only liable if it was negligent in controlling working conditions.

Until Vance, lower courts and the EEOC had split over the question of who was a supervisor. The Eighth Circuit and others limited supervisor status to those with the power to hire, fire, promote, transfer or discipline, while the EEOC and other circuits expanded the definition of supervisor to include those with the authority to direct an employee's daily work activities. At issue in Vance was whether the alleged harasser, who had minimal authority to direct the plaintiff's work but no authority to take tangible employment actions against the plaintiff, was a supervisor.

Adopting the more narrow definition already favored by the Eighth Circuit, the Court concluded that the alleged harasser in Vance was not a supervisor and held that supervisors are those empowered to take tangible employment actions against the alleged victim (such as hiring, firing, failing to promote, reassigning significantly different responsibilities and making a decision causing a significant change in benefits). This bright-line test is good news for employers, as it will end costly litigation battles over who constitutes a "supervisor" and should make it easier to dismiss Title VII harassment suits as a matter of law. In light of Vance, employers should continue to maintain anti-harassment policies and internal complaint procedures, and they should review job descriptions to make sure anyone falling into the supervisor category receives proper training.

University of Texas Southwestern Medical Center v. Nassar

In Nassar, the Court held that a plaintiff must show that his or her protected activity was the but-for cause of an alleged adverse action in a Title VII retaliation case.

The Nassar plaintiff was a medical doctor who worked for the defendant University as both a member of the faculty and a staff physician at the University hospital. He reported to the University that his direct supervisor was biased against him because of his race and religion, and the plaintiff eventually resigned. Meanwhile, the University withdrew a different job offer it had made to the plaintiff to work solely as a staff physician, claiming that the offer was inconsistent with a requirement that all staff physicians also be members of the University faculty.

The plaintiff asserted two Title VII claims against the University: (1) race and religious discrimination and (2) retaliation for complaining about alleged discrimination. The Court held that, while a plaintiff must prove that an unlawful motive caused his or her injury for either type of claim, the causation standard that the plaintiff must meet is higher for retaliation claims. It was undisputed that, for status-based discrimination claims, a plaintiff need only show that the motive to discriminate was one of the employer's motives, even if the employer also had lawful motives for its decision. The plaintiff argued that the mixed-motive test also applied to Title VII retaliation claims.

The Court disagreed, holding that to prevail on a retaliation claim, a plaintiff must prove that his or her protected activity was the but-for cause of the alleged adverse action by the employer. The Court based its decision on the text, structure, and history of Title VII, and warned that the motivating-factor standard could contribute to the filing of frivolous retaliation claims. This case could have a ripple effect on claims brought under other employment laws that lack language calling for a mixed-motive causation standard, such as the Americans with Disabilities Act and the Family and Medical Leave Act.

Fisher v. University of Texas at Austin

Employers who utilize affirmative action programs should take note of the Court's decision in Fisher. The Fisher plaintiff challenged the consideration of race in undergraduate admission decisions by the defendant University under the Equal Protection Clause of the Fourteenth Amendment. The Court reversed the lower court's grant of summary judgment for the University, holding that the lower court had not properly applied the strict scrutiny test to the University's race-conscious program. While the case centered on affirmative action in the context of higher education—not employment—it demonstrates the Court's increasing scrutiny of affirmative action programs generally.

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.

© Stinson Leonard Street | Attorney Advertising

Written by:

Stinson Leonard Street

Stinson Leonard Street on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.