Overview

On June 24, 2013, the United States Supreme Court issued two decisions addressing claims of discrimination against an employer under Title VII.

First, the Court held that an employee is a "supervisor" for purposes of vicarious liability for harassment under Title VII only if he or she is "empowered by the employer to take tangible employment actions against the victim," affirming the decision of the Seventh Circuit Court of Appeals. Vance v. Ball State University, No. 11-556 (June 24, 2013). In deciding this case, the Court rejected the broader definition of "supervisor" advocated by the EEOC and some courts, which tied supervisor status to the ability to exercise significant direction over another's daily work.

The Court reasoned that a definition that turns on the authority to assign an employee tasks would create an ambiguous standard, while the definition adopted by the Court should enable the issue to be more easily resolved as a matter of law before trial and most closely aligns with the intended framework of employer liability under the Court's prior decisions in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998). In Ellerth and Faragher, the Court had established different standards of liability for coworker and supervisor harassment, but left open the question of the definition of supervisor.

The definition of supervisor is important because an employer is only liable for coworker harassment if the employee proves the employer was negligent, meaning the employer knew or reasonably should have known about the harassment but failed to take remedial action. On the other hand, employers are strictly liable for harassment by a supervisor (who the law assumes to have used his or her authority to perpetuate the harassment). If the harassment does not result in a tangible employment action, the employer can mitigate or avoid liability by proving the Ellerth/Faragher affirmative defense that (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided. In light of this decision, employers will only be subject to strict liability if the plaintiff establishes that the alleged harasser had authority to effect 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.

Second, the Supreme Court decided that Title VII retaliation claims must be proved according to the traditional "but for" causation standard, and cannot be decided under the mixed motive standard set forth in ?2000e-2(m) for status-based discrimination. University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (June 24, 2013). This is because The Civil Rights Act of 1991 amended Title VII and codified a burden-shifting framework that enables plaintiffs to obtain declaratory relief, attorney's fees and costs, and some forms of injunctive relief based solely on proof that race, color, religion, sex or nationality was a motivating factor in the employment decision, while the employer's proof that it would have taken the same action regardless would relieve it from monetary damages or reinstatement. The Court held that ?2000e-2(m), which applies a mixed motive standard, omits any reference to retaliation claims, and thus this lesser causation standard does not apply to retaliation claims.

The Court explained that Title VII's antiretaliation provision, namely ?2000e-3(a), appears in a different section from its status-based discrimination ban, which can be proved by showing that a particular status was a motivating factor in an employment decision. Where Congress had inserted a motivating factor provision in ?2000e-2(m), which deals with status-based discrimination, that motivating factor provision is not present in ?2000e-3(a), which deals with retaliation claims.