In 2012, more than 99,000 charges of discrimination were filed with the U.S. Equal Employment Opportunity Commission. Of these charges, 31,208 of them alleged retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”). On June 24, 2013, the United States Supreme Court issued two much-anticipated employment law rulings, both of which are beneficial to employers confronted with these charges. In two 5-4 opinions, the Supreme Court (i) made it more difficult for employees to succeed in pursuing retaliation claims under Title VII; and (ii) adopted a bright line definition of “supervisor” to clarify who can potentially create automatic liability for a company in Title VII harassment cases.
Nassar: Raising the Retaliation Burden of Proof
In University of Texas Southwestern Medical Center v. Nassar, the U.S. Supreme Court addressed whether the anti-retaliation provision of Title VII requires an employee to prove that retaliation was: (a) one of multiple reasons for an adverse employment action, such as a suspension or employment termination; or (b) the “but for” cause of the action (namely, the employer would not have taken the adverse action but for the improper retaliatory motive).
The facts of the underlying case involve Dr. Naiel Nassar, who was on the faculty of the University of Texas Southwestern Medical Center (“UTSW”) and also a staff physician at Parkland Hospital’s Amelia Park Clinic (“Parkland”). Nassar insisted that his supervisor at UTSW was harassing him and discriminating against him based on his race. Nassar’s solution was to seek a job at Parkland that was not associated with his position on the UTSW faculty. With a job offer from Parkland in hand, Nassar resigned, informing UTSW that he was leaving due to the harassment and discrimination by his supervisor. Thereafter, UTSW’s chair of internal medicine opposed Parkland’s hiring of Nassar, maintaining that UTSW had the right to fill physician vacancies at Parkland with UTSW faculty. Parkland then withdrew the job offer. Nassar filed suit against UTSW, claiming that UTSW’s opposition to Parkland’s hiring of him was unlawful retaliation under Title VII. A jury found in favor of Nassar, and UTSW appealed.
The Fifth Circuit Court of Appeals reviewed the evidence presented to determine whether sufficient evidence existed to support the jury’s finding. The jury concluded that UTSW had retaliated against Nassar for engaging in the protected activity of lodging a harassment and discrimination complaint in his resignation letter. Upholding the jury’s verdict, the Fifth Circuit Court of Appeals explained that evidence existed that one reason UTSW opposed the Parkland hiring stemmed from Nassar’s complaints in his resignation letter. Therefore, the appellate court concluded that the plaintiff in a Title VII retaliation action need not prove that retaliation was the sole cause of an adverse employment action, but could prevail on evidence that retaliation was “a motivating factor.” UTSW then appealed to the U.S. Supreme Court.
Disagreeing with the Fifth Circuit, the Supreme Court reasoned that, “[w]hen the law grants persons the right to compensation for injury from wrongful conduct, there must be some demonstrated connection, some link, between the injury sustained and the wrong alleged.” In turn, the high court explained that it is necessary to review the language of Title VII to determine the proper standard of causation for Title VII retaliation claims. Title VII’s anti-retaliation provision, 42 U.S.C. § 2000e-3(a), prohibits adverse actions “because” an employee opposed unlawful conduct or participated in protected activity. By contrast, in 1991, Congress amended Title VII’s anti-discrimination provision, 42 U.S.C. § 2000e-2(m), to prohibit discrimination if a person’s protected trait was a motivating factor for an employment practice, even if other non-discriminatory factors also motivated the employment decision at issue. Contrasting the differences in the statutory language concerning discrimination and retaliation, the Supreme Court reversed the Fifth Circuit Court of Appeals for two reasons.
First, the Supreme Court examined the plain language of Title VII’s motivating factor provision, which begins by referring to “unlawful employment practices” and then proceeds to address only prohibited discriminatory actions based on an employee’s status (i.e., race, color, religion, sex, and national origin). The Court explained that this language represents Congress’ intent to confine the motivating factor provision’s coverage to only those five types of employment practices and these do not include retaliation. Second, the Court opined that Congress made the conscious decision to insert the motivating factor provision into Title VII’s statutory subsection that discusses discrimination on these five bases; it omitted this factor in modifying language in relation to retaliation. Based on this reasoning, the Supreme Court determined that a motivating factor was not the correct causation standard for retaliation claims. Rather, the causal term “because” in Title VII means that an employee must prove but for the protected activity, the adverse employment action would not have occurred.
Vance: Limiting the Definition of “Supervisor”
In Vance v. Ball State University, the Supreme Court assessed which individuals are “supervisors” for purposes of Title VII harassment claims. This definition is important because in Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton, two 1998 U.S. Supreme Court cases, the Court established a liability dichotomy for harassment cases based on whether the harasser is a supervisor or a co-worker. If the harasser is a co-worker, the employer is liable only if it is negligent in controlling working conditions. An employer is negligent if it knew or should have known of the conduct and failed to take prompt and remedial action. By contrast, when the harasser is a supervisor: (a) if the harassment culminates in a tangible employment action (e.g., hiring, firing, failing to promote, reassignment with significantly different responsibilities, etc.), the employer is strictly liable for the harassment; or (b) if no tangible employment action is taken, the employer has an affirmative defense to the harassment claim if the employer exercised reasonable care to prevent and correct any harassing behavior (e.g., had an anti-harassment policy with a reporting procedure and took appropriate action when it received reports) and the harassed employee failed to take advantage of the employer’s preventative or corrective opportunities.
In this case, Maetta Vance, a substitute server for Ball State University’s (“BSU”) catering department, filed multiple internal complaints alleging that another BSU employee, Saundra Davis, was harassing Vance based on her race. Vance’s complaints included allegations that Davis had smiled at Vance, glared at Vance, and gave Vance “weird” looks. BSU made attempts to address each of Vance’s complaints concerning Davis, but Vance was dissatisfied with these attempts and filed suit against BSU, alleging that a racially hostile work environment existed. The district court dismissed Vance’s suit, finding that BSU could not be liable for the alleged racial harassment because, while Davis occasionally took the lead in the kitchen and led and directed Vance and other employees, Davis could not hire, fire, demote, promote, transfer or discipline Vance. Consequently, Davis was not a supervisor and BSU was not negligent in controlling working conditions because BSU had responded reasonably to the incidents of which it was aware. The Seventh Circuit Court of Appeals affirmed this decision. Vance then appealed to the U.S. Supreme Court.
Agreeing with the Seventh Circuit decision, the Supreme Court noted that some circuit courts determine supervisory status based on whether the individual could hire, fire, demote, promote, transfer or discipline the allegedly harassed employee, while other circuit courts determine this status based on whether the individual could exercise significant direction over the harassed employee’s daily work. The high court explained that this former definition of a supervisor could be readily determined, usually through written documentation, during the early stages of a lawsuit, while the latter definition was nebulous and could remain murky throughout litigation, resulting in uncertainty for the litigants and overcomplicating the work of juries in deciding these cases. Thus, the Supreme Court affirmed the Seventh Circuit’s decision and determined that an individual is a supervisor only if the employer has empowered the individual “to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”
Both the Nassar and Vance decisions are significant victories for employers, with the Nassar decision making it more difficult for employees to prevail on retaliation claims and the Vance decision limiting the number of individuals who can subject employers to liability in harassment cases.