On Monday, June 24, 2013, the U.S. Supreme Court issued two 5-4 decisions making it more difficult for a plaintiff to prove an employer violated Title VII of the Civil Rights Act of 1964 (Title VII). Title VII is the federal law designed to protect employees from discrimination on the basis of factors such as race, sex, and religion. It has long been established that an employer’s liability for workplace harassment depends on the status of the harasser. If the harasser is the victim’s co-worker, the employer can be held liable if it is negligent in controlling working conditions once they are aware, or should be aware, of the harassment. An employer can also be held liable if the harasser is a supervisor.
In Vance v. Ball State University, the Court defined what a “supervisor” is for Title VII purposes. In short, the supervisor accused of harassment must be empowered by the employer to take tangible employment actions against the plaintiff. If a supervisor’s harassment culminates in a tangible employment action, the employer is strictly, or automatically, liable.
Maetta Vance was the only African-American working for University Dining Services at Ball State University. A coworker used a racial epithet against her and African-American students at the University. The University issued the coworker a written warning but several incidents occurred, and Vance reported that she felt unsafe in the workplace. The University investigated but found no basis for action. In 2006, Vance sued the University in federal court saying she had been given fewer work duties and less overtime hours by the coworker who scheduled her hours. Vance’s coworker who allegedly discriminated against her could not make ultimate employment decisions, such as a termination, but could and did schedule Vance’s work schedule and duties.
The district court granted the University’s motion for summary judgment holding there was not enough evidence to prove a hostile work environment and that the University was not liable for the actions of the individual coworkers. Vance appealed again and the Seventh Circuit Court of Appeals held for the University. The Supreme Court decided to hear the case on the question of whether a coworker who is vested with the authority to oversee the daily work of an employee is a “supervisor” for the purpose of determining employer liability for harassment.
Justice Alito, writing for the majority, found an employer can escape liability by establishing an affirmative defense that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities the employer provided. Under Vance, harassed employees can still sue for harassment by a co-worker, but an employer can now raise the defense that the employer was not negligent in its response.
The Court’s holding in the second Title VII case, University of Texas Southwestern Medical Center v. Nassar, raised the standard of causation an employee must prove in order to establish a case of retaliation. “Retaliation” refers to any adverse action an employer takes against an employee to punish them because they complained about discrimination or harassment.
According to the case history, Dr. Naiel Nassar, who is of Middle Eastern descent, had complained about discrimination by his supervisor, Dr. Philip Keiser. In 2005, after interviewing a candidate of Middle Eastern descent, Dr. Keiser said in Dr. Nassar’s presence that “Middle Easterners are lazy.” Dr. Keiser’s supervisor, Dr. Beth Levine, made similar remarks. As a result, Dr. Nassar felt that his work was scrutinized more than that of people from other ethnic backgrounds. Soon after, Dr. Nassar applied for a promotion within the department. He also believed that Dr. Levine actively undermined his attempts to secure the promotion. In 2006, Dr. Nassar resigned from the UTSW faculty, citing the harassment in his resignation letter. After reading that letter, Dr. Levine’s supervisor, Dr. Fitz, “expressed consternation” at the accusations and said it was “very important that [Levine] be publicly exonerated.” When he resigned, Dr. Nassar thought he would be offered a position at the nearby Amelia Court Clinic. The Clinic withdrew its offer after members of the UTSW faculty objected, since there was an agreement that the Clinic would only hire faculty doctors. Dr. Nassar was not offered the position because he was no longer a faculty doctor after his resignation.
In 2008, Nassar sued UTSW under Title VII, arguing he had been constructively discharged (i.e. the conditions were too miserable for him to work there) and for retaliation. The jury found in favor of Nassar and awarded back pay and compensatory damages. The jury applied the “motivating factor” test to both the constructive discharge and retaliation claims. Using the “motivating factor” test, the Fifth Circuit overturned the finding of constructive discharge but found there was sufficient evidence to support the retaliation claim.
Ultimately, the U.S. Supreme Court overturned the Fifth Circuit and found that Nassar did not meet the “but for” test of proving discrimination as the basis for retaliation, based on a strict reading of the statute. The Court previously ruled that employees were required to prove discrimination was the “but for” cause of the employee’s termination, failure to be hired, or other adverse employment action. (“But for the discrimination, the person would not have been fired.”) Congress had previously responded to that decision in 1991 by simply requiring an employee to prove that discrimination was a “motivating factor” in the employment decision, thus allowing room for “mixed motive” cases – i.e. business decision with some discrimination mixed in. Employers can defend themselves against discrimination claims by showing that they would have taken the same employment action anyway.
In Nassar, the Court decided whether this also applied to claims of retaliation (which is separate cause of action from discrimination). The Court decided the “motivating factor” does not apply to retaliation claims and that plaintiffs had to meet the tougher “but for” test, which essentially requires a plaintiff to prove retaliation was the driving factor in the employer’s action.
The Court’s decision in Nassar is highly technical, and draws a thin line between retaliation and discrimination. As Justice Ginsburg pointed out in her dissent, the Court used to consider retaliation a form of discrimination. Going forward, if a plaintiff sues for retaliation in addition to discrimination, judges will now have to instruct juries that these two causes of action have different standards of proof. (“Motivating factor” for discrimination and “but for” for retaliation.)
Both of these decisions tilt in favor of employers. In Vance, the Court ruled employers won’t be automatically liable if a coworker harasses another coworker, although employers should act if they become aware of the harassment. A coworker who says “here, do this for me” will not automatically become a supervisor for whose actions the employer is strictly liable. The Nassar case will make it more difficult for plaintiff lawyers to assert retaliation if the underlying claims of discrimination fails. Plaintiffs will need to prove that employment decision was different than it would have otherwise been because of the ill feeling generated by their underlying claim of harassment or discrimination. It can’t just be a “factor.”
The Plaintiff’s bar is likely to protest these decisions, and Congress may intervene to enact laws that reverse the effects.
The Nassar decision is available here: http://www.supremecourt.gov/opinions/12pdf/12-484_o759.pdf
The Vance decision is available here: http://www.supremecourt.gov/opinions/12pdf/11-556_11o2.pdf
Michael D. Peabody is a Partner out of B&B’s Woodland Hills office. He can be reached at mpeabody@bradfordbarthel.com.
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