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June 28, 2013

Supreme Court Title VII Decisions Narrow Definition of Supervisor and Raise The Burden of Proof In Retaliation Claims

Two decisions issued by the United States Supreme Court on June 24, 2013 made it more difficult for employees to prove workplace harassment and retaliation.  In Vance v. Ball State University, No. 11-556, the Court narrowed the definition of “supervisor” in Title VII discrimination claims.  In University of Texas Southwestern Medical Center v. Nassar, No. 12-484, the Court imposed a “but-for” causation requirement to establish retaliation.

Vance v. Ball State University

In Vance, the Supreme Court answered the question who qualifies as a “supervisor” under Title VII.  According to the Court, an employee is a “supervisor” for purposes of Title VII if he or she is empowered by the employer to take “tangible employment actions” against the complaining employee.  Tangible actions require the ability to make a “significant change in employment status,” such as hiring, firing, promoting, reassigning responsibilities, or making a decision that causes a “significant” change in benefits.  The Court expressly rejected the Equal Employment Opportunity Commission’s broader definition of supervisor which included an individual “authorized to direct another employee’s day-to-day work activities…even if that individual does not have the authority to undertake or recommend tangible job decisions.”

The definition of “supervisor” is important for establishing liability.  If the harasser is the victim’s co-worker, an employer is liable only if it was negligent in controlling working conditions.  If the harasser is a “supervisor,” different rules apply.  If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable for the harassment.  If no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that it exercised reasonable care to prevent and correct harassment and that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities.

University of Texas Southwestern Medical Center v. Nassar

In Nassar, the Supreme Court clarified the test for establishing retaliation under Title VII.  According to the Court, Title VII retaliation claims require an employee to prove that the retaliation was the “but-for” cause of the challenged employment action.  To establish but-for causation, an employee must prove that retaliation was not just one of the motivating factors for the adverse action, but rather was determinative in the decision to take the adverse action.  According to the Court, this “requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”  The Court rejected the less stringent “mixed motive” causation standard, which allows proof that the employer’s retaliatory motive was but one of the motivating factors.

Takeaway for Employers

The Court’s decisions in Vance and Nasser make it more difficult for employees to succeed in Title VII claims against employers by narrowing the definition of “supervisor” and by placing a higher burden of proof on potential plaintiffs in retaliation claims.

To help avoid liability and to take advantage of potential defenses, employers are reminded to maintain anti-discrimination policies with articulated complaint procedures in order to prevent and correct any harassing behavior.  Employers should also consider equal employment opportunity training for all supervisors.

Employers are reminded that the Supreme Court’s decisions in Vance and Nasser apply to actions arising under Title VII.  The definitions of supervisor and the standard for establishing retaliation under applicable state and local employment laws may differ from those under Title VII.

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If you have any questions regarding the Ball State or Nassar decisions or about their effect on potential Title VII claims, please do not hesitate to contact us.