On June 24, 2013, the United States Supreme Court issued two decisions regarding Title VII of the Civil Rights Act of 1964 (Title VII). In both cases, the Court limited employers’ liability exposure under federal employment law. This client update summarizes both decisions and explains their potential impact.
University of Texas Southwest Medical Center v. Nassar
In University of Texas Southwest Medical Center v. Nassar, No. 12-484 (June 24, 2013), the Court resolved a circuit split by holding that plaintiffs asserting claims for retaliation under Title VII must prove that a retaliatory motive was the “but for” cause of the adverse action. In so holding, a divided Court (5-4) reversed the decision of the U.S. Court of Appeals for the Fifth Circuit, which had applied the so-called “mixed motive” analysis to a Title VII retaliation claim.
Under the “mixed motive” theory, a Title VII plaintiff need only show that an improper motive was one of several reasons for an employer’s adverse action. The “mixed motive” theory presents a lower hurdle for a plaintiff to clear than having to prove “but for” causation, which requires a plaintiff to prove that an adverse action would not have occurred “but for” the employer’s improper motive.
The availability of the “mixed motive” analysis in the Title VII context is based on a 1991 amendment to Title VII’s discrimination – but not retaliation – provisions, requiring that a protected characteristic (such as race, gender, etc.) need only be a “motivating factor” behind an adverse action in order to create actionable conduct. Writing for the majority in Nassar, Justice Anthony Kennedy held that this amendment is not applicable to Title VII retaliation claims, but rather that it only pertains to “status discrimination” claims under Title VII alleging discrimination based on a protected characteristic.
Justice Kennedy found instructive the Court’s earlier opinion in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), in which the Court held that the “mixed motive” analysis is inapplicable to claims brought under the Age Discrimination in Employment Act (ADEA). Relying on the ADEA’s prohibition of discrimination “because of” an individual’s age, the Court in Gross held that an ADEA plaintiff cannot establish unlawful age discrimination without proof of “but for” causation.
The Nassar decision will make it more difficult for plaintiffs to prevail in Title VII retaliation claims. However, the decision is likely to have an even broader impact by limiting employer exposure in retaliation suits brought under other federal employment laws – such as the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) – which contain anti-retaliation provisions similar to that of Title VII’s.
Vance v. Ball State University
In Vance v. Ball State University, No. 11-556 (June 24, 2013) the Court resolved a circuit split over the definition of the term “supervisor” for purposes of determining the vicarious liability of an employer in Title VII hostile work environment claims. In another 5-4 decision, the Court affirmed the decision of the U.S. Court of Appeals for the Seventh Circuit and narrowly defined a Title VII “supervisor” as an individual who is empowered by the employer to take “tangible employment actions” against the alleged victim. In so holding, the Court rejected the broader definition of “supervisor” supported by the Equal Employment Opportunity Commission (EEOC) and other federal courts of appeals – including the Second Circuit – under which a “supervisor” is considered any individual who has authority to direct an alleged victim’s daily work activities.
Writing for the majority, Justice Samuel Alito held that the narrow definition of “supervisor” is implicit in the framework adopted by the Court in its landmark decisions of Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). According to these opinions, if an employee is deemed a “supervisor” under Title VII, then the employer will be strictly liable for any tangible employment action (i.e. “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”) that occurs as a result of the individual's harassment. Even in the absence of a tangible employment action, a supervisor's harassment of another employee will impute liability to an employer unless the employer can show that it had an effective anti-harassment policy and that the plaintiff unreasonably failed to take advantage of preventative measures available pursuant to that policy. In contrast, if the alleged harasser is not a “supervisor,” then the employer will be liable only if the plaintiff can prove that the employer was negligent in failing to curtail the harassment.
Quoting Ellerth, the Vance Court found that a Title VII “supervisor” must have the power to make a “significant change” in an alleged victim’s employment status, “such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” This standard, said the Court, can be “readily applied” such that an alleged harasser’s supervisory status can likely be resolved as a matter of law before trial. In contrast, said the Court, the definition supported by the EEOC is a “study in ambiguity.”
By adopting the more narrow definition of “supervisor,” the Court limits the potential vicarious liability of employers in Title VII hostile work environment claims by decreasing the likelihood of an alleged harasser qualifying as a “supervisor.”