Supreme Court Decides Important Employment Issues: Who is a "Supervisor" for Assessing Workplace Harassment Claims and What Test is to be Used for Deciding Workplace Retaliation Claims

by Jackson Walker
Contact

INTRODUCTION. The U.S. Supreme Court has issued two significant employment decisions: Vance v. Ball State University (addressing the issue of who is properly called a "supervisor" when assessing workplace harassment claims); and University of Texas Southwestern Medical Center v. Nassar (addressing the proper test for proving unlawful workplace retaliation).
Vance v. Ball State University
CO-WORKER V. SUPERVISOR HARASSMENT. Title VII of the Civil Rights Act of 1964 has previously been interpreted by the Supreme Court to include a prohibition against harassment in the workplace on the basis of gender, that is, a prohibition against creating a working environment heavily charged with gender discrimination. Other courts have expanded this prohibition to include harassment based upon race, religion, national origin or color. In the Vance case, the Supreme Court was willing to assume that racial harassment was covered by the law.
In recognizing the existence of a claim of harassment, the Supreme Court has further indicated that an employer's potential liability for a claim of workplace harassment depends upon whether the accused harasser is a co-worker or a supervisor. Therefore, under this two-part test, the employer is liable for the actions of an allegedly harassing co-worker only if the employee shows the employer was negligent in controlling working conditions by being in a position that it knew or should have known of harassing conduct, but failed to take prompt remedial action to stop the harassment.
TANGIBLE EMPLOYMENT ACTIONS BY SUPERVISORS. On the other hand, the employer is "strictly liable" (that is, liable regardless of the employer's ability to step in to prevent or remedy the harassment) for the alleged harassing actions of a supervisor where the supervisor's conduct culminated in a "tangible employment action." The Court has defined "tangible employment action" to mean a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or significantly changing benefits."
If the employer can demonstrate that a supervisor has not taken a "tangible employment action," then the employer might escape Title VII liability by establishing (1) that it exercised reasonable care to prevent and correct any harassing behavior, and (2) that the complaining employee unreasonably failed to take advantage of the opportunities provided by the employer.
WHO IS A SUPERVISOR? Therefore, the status of the accused harasser makes a big difference in evaluating the potential liability of an employer confronted with a harassment claim.
The Supreme Court in the Vance case squarely confronted this issue. It held that an employee is a "supervisor" for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the employee. In adopting this straightforward approach, the Court specifically declined to adopt the approach recommended by the Equal Employment Opportunity Commission that tried to combine how many assignments one individual could make to another with a consideration of how long a period of time the individual could oversee the work of a co-worker. The Court further refused to apply a standard based upon the "label" an employee might be given in the workplace, recognizing that frequently someone who oversees the work of another might nevertheless fail to possess the power to take a "tangible employment action" without the approval of someone higher up in the chain of command.
IMPACT OF THE TEST UPON THE HARASSMENT CLAIM. Applying this standard to the facts before it, the Court found that Ms. Vance had failed to demonstrate that the alleged harasser (of a different race) was her supervisor. Ms. Vance's claims consisted of complaints about the co-worker's "glaring at her, intimidating her, and trying to block her from doing her work." Ms. Vance admitted that the co-worker in question did not have the power to hire, fire, demote, promote, transfer or discipline her.
The result was that the Supreme Court upheld the determination that the employer could not be strictly liable for the harassment complained of by Ms. Vance.

University of Texas Southwestern Medical Center v. Nassar
The Supreme Court also issued its decision in University of Texas Southwestern Medical Center v. Nassar. The ruling elevates the standard employees must meet to pursue a retaliation claim successfully under Title VII of the Civil Rights Act of 1964. The result is that employees will no longer be able to prevail on retaliation claims merely by demonstrating that retaliation was a "motivating factor" in the employer's adverse employment action (such as termination or demotion) towards the employee. Instead, employees will now have to demonstrate that the adverse employment action would not have happened "but for" the employer's intention to retaliate.
FACTUAL BACKGROUND. In the Nassar case, Dr. Nassar, who is of Middle Eastern descent, was hired by the University of Texas Southwestern Medical Center (UTSW). Dr. Nassar alleged that one of his supervisors questioned his productivity and other aspects of his employment. Dr. Nassar also alleged that the supervisor made remarks about his national origin. 
For these and other alleged reasons, Dr. Nassar ultimately resigned, citing the supervisor's harassment and the creation of an unhealthy work environment. He then pursued a job at another hospital, but that hospital withdrew its job offer after one of his former UTSW supervisors opposed it.
CLAIMS FILED BY DR. NASSAR. Dr. Nassar eventually sued UTSW for violations of Title VII, claiming that the medical center had constructively discharged him and had also retaliated against him by encouraging the successor hospital to withdraw his job offer because of his complaints of discrimination. A jury found in favor of Dr. Nassar on both the discrimination and retaliation claims. 
UTSW then appealed to the U.S. Court of Appeals for the Fifth Circuit, which has jurisdiction over cases arising in Texas. As sometimes happens in retaliation cases, the appellate court concluded that there was insufficient evidence of discrimination but sufficient evidence that retaliation was a "motivating factor" behind UTSW's actions in allegedly discouraging another hospital from hiring Dr. Nassar.
"BUT FOR" CAUSATION REQUIRED FOR RETALIATION CLAIMS. The Supreme Court yesterday ruled in favor of UTSW. Its opinion acknowledged that Congress had amended Title VII in 1991 to say that an employee could establish a discrimination claim by demonstrating that race, color, religion, sex or national origin was a "motivating factor," even though other factors may also have motivated the discriminatory conduct. The Court explained further, however, that the statute made clear that the "motivating factor" provision only applied to claims of "discrimination" rather than claims of retaliation. Therefore, the Court concluded that the traditional "but for" causation test stands as the only proper standard for proving retaliation claims.
CONCLUSION. As a result of the Court's decision in the Vance case, employers should take care when identifying their workplace chain of command to the workforce, and should specifically try to describe in their Personnel Manuals or Workplace Handbooks available avenues by which an employee can bring to their attention promptly the existence of any harassing conduct. In doing so, employers should also take care to identify who in the workplace possesses ultimate authority over actions that are within the definition of "tangible employment actions." A well-crafted process by which an employee can complain of improper treatment within the company, which makes clear that only upper management can review or take tangible employment actions, will go a long way towards narrowing the company's exposure for a claim of supervisor harassment.
The Nassar decision unquestionably complicates an employee's efforts to sue for retaliation successfully. Both decisions will potentially have an impact beyond claims filed under federal law. The Texas Commission on Human Rights Act was adopted to provide employees with a separate cause of action for discrimination and for retaliation under Texas law. When the Legislature enacted this law, it specifically indicated that Texas courts were to adopt the reasoning and holdings of federal courts in interpreting the provisions of the Texas law. Texas courts must now take note in cases involving claims of harassment or retaliation the standards established by the U.S. Supreme Court in the wake of the Vance and Nassar rulings.
Employers should also note that while Dr. Nassar was found not to have brought a meritorious discrimination claim, his retaliation claim nevertheless was upheld in the lower courts. Employers should therefore ensure that procedures are in place to avoid giving the appearance that adverse employment actions are taken against present or former employees on the basis of their engaging in activities which are protected under Title VII.

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.

© Jackson Walker | Attorney Advertising

Written by:

Jackson Walker
Contact
more
less

Jackson Walker 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.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

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.

Security

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.