Capping off a term of big decisions with employer-friendly results, the U.S. Supreme Court weighed in on two major employment issues in a pair of Title VII cases that determined retaliation claims require plaintiffs to prove their case according to traditional “but for” causation and that for purposes of vicarious liability in a discrimination suit, a supervisor must have the power to take “tangible employment actions” against the victim.
In University of Texas Southwestern Medical Center v. Nassar, Justice Anthony M. Kennedy wrote for the majority that employees alleging retaliation by an employer face a higher burden – “but for” causation – as opposed to merely showing that the retaliation was one motivating factor in an adverse employment action.
The 5-4 decision vacated a $3.4 million verdict for Dr. Naiel Nassar, who claimed his supervisor discriminated against him on the basis of his Arab ethnicity and Muslim religion with comments like “Middle Easterners are lazy.” After he resigned and sent a letter laying out his complaints about the supervisor, a job offer at the school’s clinic was rescinded. He filed suit for constructive discharge and retaliation under Title VII.
A jury sided with Nassar on both claims and the 5th U.S. Circuit Court of Appeals affirmed, ruling that under Title VII retaliation claims only required a showing that retaliation was a motivating factor, not that the adverse action would have happened but for the retaliation.
But the justices reversed, ruling that the proper standard of causation for Title VII retaliation requires a higher showing than status-based discrimination claims. The anti-retaliation provision of Title VII is set apart from the statute’s ban on status-based discrimination, which is subject to a lower standard of proof, the Court said.
“As actually written…the text of the motivating-factor provision, while it begins by referring to ‘unlawful employment practices,’ then proceeds to address only five of the seven prohibited discriminatory actions – actions based on the employee’s status, i.e. race, color, religion, sex and national origin,” Justice Kennedy wrote. “This indicates Congress’s intent to confine [the motivating-factor] provision’s coverage to only those types of employment practices. The text…says nothing about retaliation claims.”
Hinting at the ever-popular floodgates argument, the majority expressed concern that lessening the causation standard “could also contribute to the filing of frivolous claims.”
Congress created a “precise” statutory scheme, the justices concluded, and the “text, structure, and history of Title VII demonstrate that a plaintiff making a retaliation claim…must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.”
In her dissent, Justice Ruth Bader Ginsburg argued that the majority “drives a wedge” between discrimination and retaliation claims, which are in fact tightly bonded. “This Court has long acknowledged the symbiotic relationship between the proscriptions on discrimination and proscriptions on retaliation,” she wrote. Separating the two “undermin[es] the legislature’s effort to fortify the protections of Title VII.”
On the same day, the justices released Vance v. Ball State University, a second Title VII decision with a 5-4 split in which the justices narrowed the scope of vicarious liability for employers.
“We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., 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,’” Justice Samuel A. Alito Jr. wrote for the majority.
The case began when Maetta Vance, an African-American catering assistant at Ball State University in Indiana, sued the school alleging it maintained a racially hostile work environment. Vance claimed she was subjected to racial harassment by a white catering specialist. Unable to establish negligence on the part of the university in how it handled her complaints, Vance focused her case on whether the alleged harasser qualified as her “supervisor,” making Ball State vicariously liable under Title VII.
But the majority said the co-worker’s direction of Vance’s daily activities did not make her a “supervisor.”
“The ability to direct another employee’s tasks is simply not sufficient,” the Court determined. “Employees with such powers are certainly capable of creating intolerable work environments, but so are many other co-workers. Negligence provides the better framework for evaluating an employer’s liability when a harassing employee lacks the power to take tangible employment actions.”
The court rejected “the nebulous definition” of “supervisor” adopted by several federal appellate courts, colloquial uses of the term, and advocated for by the Equal Employment Opportunity Commission.
Instead, Justice Alito emphasized that the Court’s “tangible employment actions” standard was “easily workable” and “can be applied without undue difficulty at both the summary judgment stage and at trial.”
Again authoring a spirited dissent, Justice Ginsburg said the majority “ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation’s workplaces.”
“Trumpeting the virtues of simplicity and administrability, the Court restricts supervisor status to those with power to take tangible employment actions,” she wrote. “In so restricting the definition of supervisor, the Court once again shuts from sight the ‘robust protection against workplace discrimination Congress intended Title VII to secure.’”
To read the decision in University of Texas Southwestern Medical Center v. Nassar, click here.
To read the decision in Vance v. Ball State University, click here.
Why it matters: Taken together, the decisions are a decisive victory for employers, heightening the evidence requirements for retaliation plaintiffs and narrowing the scope of supervisors potentially liable for harassment. Under Nassar, retaliation plaintiffs now face a higher burden in proving their claims against an employer while the Vance holding will focus litigation on whether an employer was negligent in failing to respond to harassment complaints, and not on the tangential issue of whether someone qualifies as a “supervisor.” In addition, pursuant to Vance, employers may consider reevaluating which employees are granted the power to effectuate “a significant change in employment status” to narrow the scope of possible supervisors.