Univ. of Tex. S.W. Med. Ctr. v. Nassar, 570 U.S. ___, 2013 U.S. LEXIS 4704 (Jun. 24, 2013)
The Supreme Court ruled that a plaintiff asserting retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”) must prove that the retaliation was the “but for” cause of the employer’s adverse action. In a five-to-four decision, the Court rejected the lower court’s decision, which applied a less burdensome standard, requiring merely that a plaintiff show the retaliation was one “motivating factor,” among others, resulting in the adverse action. This decision is welcome news, as retaliation claims are today among the most frequently asserted in the employment context both nationally and in California.
Respondent Nassar, a physician of Middle Eastern descent, complained that one of his superiors, Dr. Levine, discriminated against him based on his religion and ethnic heritage. Nassar, who worked as a staff physician and assistant professor at the University of Texas Southwestern Medical Center (“UTSW”), attempted to resolve the issue by arranging to work at the hospital without being a UTSW faculty member under Levine’s supervision. After Nassar resigned from UTSW, citing Levine’s discrimination and harassment as his primary motivation for the transfer, the hospital withdrew its offer of employment at the request of Levine’s supervisor. Nassar filed suit against UTSW, alleging constructive discharge and retaliation under Title VII.
The issue on appeal was whether Nassar had to prove that the alleged retaliation was the “but for” cause of the termination or merely one of several “motivating factors” in the decision. In holding that a plaintiff alleging a Title VII retaliation claim must prove that the retaliation was the “but for” cause of the employer’s adverse employment decision, the Court clarified that the less burdensome “motivating factor” test applies only to status-based discrimination under Title VII (discrimination on the basis of race, color, religion, sex, national origin, etc.). Consequently, following Nassar, employers will be in a better to position to prevail in cases in which an employee is not able to prove that illegal retaliation was the actual cause of the alleged injury.
Though very good news for employers nationwide because it elevates the standard of proof that plaintiffs must satisfy in retaliation cases, Nassar will have less of an impact for California employers given that plaintiffs in California generally file claims under the California Fair Employment and Housing Act (“FEHA”) and not under Title VII. In a similar case to Nassar, the California Supreme Court recently held in Harris v. City of Santa Monica, 56 Cal. 4th 203 (2013), that plaintiffs alleging unlawful discrimination or retaliation under FEHA need to prove that illegal discrimination was a “substantial factor” motivating the adverse employment action. Under the Harris test, an employer can avoid liability for damages, back pay, or an order of reinstatement under FEHA—even if a plaintiff shows that unlawful discrimination was a “substantial factor” motivating the adverse employment action—if the employer can prove that it would have made the same decision to terminate or otherwise take adverse action against the plaintiff for a legitimate, non-discriminatory reason. Harris makes clear, however, that an employer may still be liable under FEHA for declaratory or injunctive relief (not including reinstatement) and reasonable attorney’s fees even if it can establish a legitimate, non-discriminatory reason for terminating the employee. Vance v. Ball State Univ., 570 U.S. ___, 2013 U.S. LEXIS 4703 (Jun. 24, 2013)
In Vance v. Ball State University, the Supreme Court held that an employee is a “supervisor” for purposes of vicarious employer liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the employee victim.
Following alleged harassment by a superior, Maetta Vance, a Ball State University Dining Services employee, filed suit in October 2006, alleging hostile work environment in violation of Title VII. Vance asserted vicarious liability on the part of Ball State based on the actions of her superior. Ball State moved for summary judgment, arguing that because the superior was not a supervisor, it could not be held vicariously liable for her actions. The issue on appeal was whether a “supervisor” must have the power to take tangible employment actions or whether a “supervisor” need only direct the day-to-day activities of an employee. Affirming the lower court, the Supreme Court held that a “supervisor” is more narrowly defined as an individual who has authority to take tangible employment actions, “such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.”
The Vance decision is significant because an employer can be held strictly liable for its supervisors’ harassment of employees if the harassment culminates in a tangible employment action. If no tangible employment action results, however, an employer can escape liability by establishing that (1) the employer exercised reasonable care to prevent and correct any harassment and (2) the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer. In cases in which the harasser is not a supervisor, an employer may still be held liable if it was negligent in controlling working conditions—i.e., that it knew or should have known the illegal activity was occurring in the workplace. Thus, in rejecting a broader definition of supervisor in favor of a narrower definition, the Court limited the circumstances under which an employer can be found vicariously liable for an employee’s harassment of another employee. Further, the Court’s decision adopts a bright-line standard that courts will likely decide as a matter of law before trial, avoiding juror confusion and simplifying jury instructions in trials of harassment claims. The case may also make it easier for employers to obtain summary judgment. At the same time, because employers that are on notice of harassment by co-workers can still be liable for failing to resolve the harassment, it remains important for employers to have appropriate policies and procedures in place to prevent and resolve work place harassment in a timely fashion.