On June 24, the Supreme Court of the United States issued two highly-anticipated decisions.
In Vance v. Ball State University, the justices considered the scope of the "supervisor" liability rule established by Supreme Court precedent. Multiple interested parties provided amicus curiae briefs in support of both positions. The Court sought to discern the correct standard for holding an employer vicariously liable for an employee’s harassing acts made toward another employee under the guise of being the victim’s “supervisor.” At issue was whether to apply the rule to employees whom the employer vests with the authority to direct and oversee a harassment victim's daily work or whether the rule is limited to those harassers who have the power to "hire, fire, demote, promote, transfer, or discipline" their victims.
The Supreme Court, in a 5-4 decision authored by Justice Alito, ruled that an employee is a "supervisor" for purposes of vicarious liability under Title VII of the Civil Rights Act of 1964 only if he or she is empowered by the employer to take tangible employment actions against the victim. Vance v. Ball State University, No. 11–556, Supreme Court of the United States (June 24, 2013).
In University of Texas Southwestern Medical Center v. Nassar, the Court considered whether the retaliation provision of Title VII, 42 U.S.C. § 2000e-2(a), requires a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive) or instead provides the employee with a lesser burden of proving mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).
The Supreme Court, in a 5-4 decision authored by Justice Kennedy (with the same distribution of justices on each side of the issue), ruled that Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened mixed motive causation test stated in §2000e–2(m). University of Texas Southwestern Medical Center v. Nassar, No. 12–484, Supreme Court of the United States (June 24, 2013).
The Court also agreed to hear arguments in two labor-related cases next term. The Court will consider the president’s recess appointment power related to the NLRB appointments and will consider whether an employer would be providing a prohibited “thing of value” if it agreed with a union on an issue such as remaining neutral on union organizing.
VANCE V. BALL STATE UNIVERSITY
Maetta Vance alleged she was the victim of a racially hostile work environment while employed at Ball State University. The Supreme Court received argument to determine the proper standard for determining whether an employee is a "supervisor" such that an employer may be held vicariously liable for his/her acts. According to the 1998 cases, Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, an employer may be held vicariously liable for harassment under Title VII if the harasser is the plaintiff's supervisor.
The Court ruled that the Ellerth/Faragher framework presupposes a distinction between supervisors and coworkers. The defining characteristic, according to the Supreme Court, is whether the employee has the ability to make tangible employment decisions. In so finding, the Court rejected the "expansive," "nebulous," and vague definition of "supervisor" found in an Equal Employment Opportunity Commission (EEOC) Enforcement Guidance and ruled that the "ability to direct another employee's tasks is simply not sufficient" to warrant employer liability.
As Justice Alito commented several times in the majority opinion, the EEOC's definition would result in difficulties and ambiguities for parites and courts. The "supervisor status would very often be murky" whereas the definition of supervisor adopted by the Court today can be "readily applied" and resolved before trial.
UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER V. NASSAR
Dr. Naiel Nassar, who is of Middle Eastern descent, was a faculty member at the University of Texas Southwestern Medical Center (UTSW) and a clinician at UTSW-affiliated Parkland Hospital. Nassar filed a constructive discharge and retaliation suit against UTSW and a jury found in his favor. The Fifth Circuit Court of Appeals affirmed, finding that retaliation claims only require a showing that retaliation was a motivating factor for an adverse employment action. The Supreme Court of the United States disagreed.
According to the Court, an employee who alleges retaliation under Title VII must satisfy the but-for causation test. In other words, he or she must show that the causal link between the alleged wrongful act and the injury is so close that the injury would not have occurred but for the alleged wrongful act. The Court found that the lesser causation standard—the so-called mixed-motive standard—requiring employees to show that retaliation was merely one of the employer's motives is insufficient to show liability for a Title VII retaliation claim because it removes the employer’s ability to make decisions based on other, lawful motives. In arriving at this conclusion, the court found instructive its 2009 decision in Gross v. FBL Financial Services, Inc., in which the Court applied the but-for causation standard to a disparate treatment claim brought under the Age Discrimination in Employment Act (ADEA). The Court found that "the lack of any meaningful textual difference between" Title VII's anti-retaliation provision and the ADEA necessitates the same conclusion in this case, namely that "Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action." Recognizing that "retaliation claims are being made with ever-increasing frequency," the Court noted that a lesser causation standard might "contribute to the filing of frivolous claims, which would siphon resources from efforts by employer[s], administrative agencies, and courts to combat workplace harassment."
NOEL CANNING AND UNITED HERE LOCAL 355
The Court agreed to hear two cases in the 2013-2014 term that will impact employers. A decision on Noel Canning v. NLRB will clarify a number of issues related to President Obama’s recess appointments to the National Labor Relations Board (NLRB) on January 4, 2012.
In United Here Local 355 v. Mulhall, the Court will consider—among other issues—whether an employer and union violate Section 302 of the Labor-Management Relations Act by entering into an agreement under which the employer provides a prohibited "thing of value" to a union by promising to remain neutral to union organizing.