Key Supreme Court Decisions Affecting Title VII in 2013
The Supreme Court finished its 2013 term weighing in on two cases relating to Title VII, the principal federal anti-discrimination law. Both cases heighten the burden for Plaintiffs in bringing and prevailing in employment discrimination cases. The Court heightened the evidentiary burden for Plaintiffs bringing retaliation claims and narrowed the definition of “supervisor” for Plaintiffs asserting claims in Title VII harassment suits.
The bar for Plaintiffs to prevail in a Title VII case alleging retaliation is raised under Title VII
In University of Texas Southwestern Medical Center v. Nassar, Naiel Nassar, a physician of Middle Eastern descent, alleged that his supervisor’s racially and religiously motivated harassment resulted in his constructive discharge from the University.1 He also claimed that the University retaliated against him for complaining about his supervisor because a job offer from Parkland Memorial Hospital was rescinded after the University protested.2
The legal question before the Court in Nassar was whether the causation standard to establish liability for a Title VII retaliation claim is the lesser “motivating factor” or the heightened “but-for” causation standard. If the motivating factor standard was used, it would be sufficient for Nassar to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other lawful motives for the decision. However, if the “but for” causation standard was used, Nassar must prove that the desire to retaliate was the “but-for” or determinative cause of the challenged employment action (retaliation).
The Court held that the proper causation standard in Title VII retaliation cases is the heightened “but-for” standard after analyzing Congress’ intent and an extensive textual analysis of Title VII of the Civil Rights Act. In addition, Justice Kennedy, writing for the majority, opined that applying the lesser “motivating factor” test would have the undesirable consequence of contributing to the filing of frivolous claims which tax employers, administrative agencies and courts. Justice Kennedy highlighted the high number of EEOC retaliation claims and a need to curtail them. He stated that “the number of these claims filed with the EEOC has nearly doubled in the past 15 years-from just over 16,000 [claims] in 1997 to over 31,000 [claims] in 2012.”3
Writing the dissent, Justice Ginsburg said “the tougher “but-for causation standard” that the court was adopting for retaliation cases would undercut efforts to fight employment discrimination.”4 She also warned “that juries would be confused in hearing cases in which employment discrimination claims would be judged by one standard and the related retaliation claims by a tougher standard.”5
Practical Application: This decision is pro-business and seeks to rein in the high number of retaliation claims under Title VII by raising the evidentiary burden for would be Plaintiffs. From the defendant’s perspective this decision likely improves employer odds of dismissing employee retaliation claims under Title VII early in the litigation process at the summary judgment stage.
The E.E.O.C. definition of supervisor is eschewed for a narrow, precise definition
In Vance v. Ball State University, 570 U.S.___ (2013) Maetta Vance, an African-American catering assistant, sued her employer, Ball State University, alleging that a fellow employee, Davis, created a racially hostile work environment. Vance complained that Davis “gave her a hard time at work by glaring at her, slamming pots and pans around her, and intimidating her,6 among other things, based on her race. The parties do not dispute that Davis did not have the power to hire, fire, demote, promote, transfer or discipline Vance.
The legal question before the Court in Vance was who qualifies as a “supervisor” in a case alleging a Title VII claim for workplace harassment? There were two differing definitions of the term “supervisor” presented by the parties. One definition, set out in the EEOC Enforcement Guidance “ties supervisor status to the ability to exercise significant direction over another’s daily work.”7
The Court rejected the definition of “supervisor” presented in the EEOC Enforcement guidance and held that an employee is a “supervisor” for purposes of vicarious liability (employer responsibility for a supervisor’s actions) under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.8 The Court explained, the “definition of ‘supervisor’ that we adopt today, the question of supervisor status, when contested, can very often be resolved as a matter of law before trial.”9 The Court further stated, “Perhaps even more important, the work of the jury, which is inevitably complicated in employment discrimination cases, will be simplified.”10 The Court elaborated, “by simplifying the process of determining who is a supervisor (and by extension, which liability rules apply to a given set of facts), the approach that we take will help to ensure that juries return verdicts that reflect the application of the correct legal rules to the facts.”11 Justice Ginsburg cautioned that the majority opinion “is blind to the realities of the workplace.” She wrote “that it is not easy for an employee to tell a harassing supervisor to “buzz off” even when the supervisor does not have the power to fire or demote.”
Practical Application: This decision develops a bright-line rule defining “supervisor” which will have the likely effect of lessening the amount of litigation or dispose of it at early stages of litigation. In addition, the decision highlights that employers will likely succeed in defending against employment claims where they maintain anti-harassment policies and conduct workplace investigations resulting from employee complaints.