On Monday, the U.S. Supreme Court issued two welcome decisions. First, in Vance v. Ball State University, No. 11-556 (June 24, 2013), the United States Supreme Court defined “supervisory” authority under Title VII of the Civil Rights Act of 1964 as requiring the power to “take tangible employment actions” affecting employees. Such power includes the authority to make “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.” In Vance, the Court rejected the Equal Employment Opportunity Commission’s broader definition of supervisor which includes authority to direct other employees as a basis for finding supervisor status. Plaintiff Vance argued that her co-worker, who allegedly slapped, threatened and used racial slurs, had authority to “direct her work” and thus was a supervisor for whose actions her employer could be held vicariously liable. The Court disagreed, and held that an employee can be a “supervisor” for purposes of imposing vicarious liability on an employer only if the employee is empowered by the employer to take tangible employment actions against the victim. For more on the Vance v. Ball State decision, click Supreme Court Clarifies Definition of ‘Supervisor’ in Hostile Work Environment Cases.
Unfortunately, California courts applying California law may reach a different result. The California Fair Employment and Housing Act adopts a broader definition of supervisor and specifically includes “the responsibility to direct employees” as a basis for finding supervisor status so long as that individual exercises independent judgment. Cal. Govt. Code Section 12926(s), Chapman v. Enos (2004) 116 Cal.App.4th 920, 930 [reversing defense verdict in harassment case due to erroneous jury instruction requiring “accountability” for employee]. Interestingly, the FEHA definition of supervisor is virtually identical to, except for using the word “responsibility” instead of “responsibly,” the definition of a supervisor under the National Labor Relations Act (“NLRA”). In Vance, the Court distinguished the NLRA test and rejected its applicability to Title VII harassment actions. The Vance Court viewed the authority to direct daily work activities as “nebulous,” “ill-defined” and overly fact specific whereas it deemed its “tangible employment action” test to be an “easily workable” “brightline” rule that makes determining supervisor status something that can be “readily determined” based on documentation and addressed at the summary judgment stage or earlier. Accordingly, case law under the NLRA demonstrating a restrictive view of the definition of supervisor, as noted by Justice Alito writing for the majority in Vance, may be helpful to employers seeking to avoid strict liability under the broader California standard.
In a second helpful decision, University of Texas Southwestern Medical Ctr. v. Nassar, No. 12-484 (June 24, 2013), the U.S. Supreme Court ruled that retaliation claims under Title VII must be established using a “but-for” causation standard, denying the argument asserted by plaintiff and the EEOC that the less demanding “motivating factor” test should be used in determining causation in retaliation cases. Employers thus can successfully defend Title VII claims unless an employee can show they would not have taken the adverse action in question but for the alleged retaliatory intent. For more on the Supreme Court’s decision in Nassar, click U.S. Supreme Court: Title VII Retaliation Claims Require Proof of ‘But-For’ Causation.
Not surprisingly, current California law could lead to a different result. As one Court of Appeal has observed, “[I]t is well established that a plaintiff in a retaliation case need only prove that a retaliatory animus was at least a substantial or motivating factor in the adverse employment decision.” George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1492 [finding substantial evidence that retaliatory animus was “motivating factor” sufficient to affirm plaintiff’s verdict in retaliation case]. In contrast to the “but-for” causation standard adopted by the U.S. Supreme Court in Nassar, California’s “substantial or motivating” factor test offers greater possibilities for employees to successfully assert retaliation claims even when the evidence shows the employer would have taken the adverse action in question with or without any alleged retaliatory intent.
The California Supreme Court’s recent decision in Harris v. City of Santa Monica, (2013) 13 C.D.O.S. 1516 (Cal. Feb. 7, 2013) suggests that California courts may also embrace stricter proof requirements in retaliation cases. Harris held that to establish liability in “mixed motive” employment discrimination cases under the FEHA, the employee must show that unlawful discrimination was a “substantial factor” motivating the adverse employment decision; further, if the employer proves that it would have made the same decision absent such discrimination, the court may not award damages, back pay, or order reinstatement (although the employee may still obtain declaratory and injunctive relief, as well as attorney’s fees and costs). The Harris rationale would seem to apply just as well to retaliation claims under FEHA.
The juxtaposition between California law and the U.S. Supreme Court decisions in Vance and Nassar provides another illustration of a reality California employers know all too well. California law provides greater protections to employees and poses administrative and legal challenges with which employers in most other states need not contend. Yet, the Harris decision shows there is always hope for change.