On June 24th, the U.S. Supreme Court issued two 5-4 decisions that significantly raise the bar on employees suing their employers for harassment and retaliation.
In cases alleging harassment in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), the employer can be held strictly liable if the harasser is deemed to be a “supervisor.” If the alleged harasser is not a supervisor but merely a co-worker, the employer generally is liable only if it fails to exercise reasonable care to correct and prevent any harassing behavior. As a result, harassment claims often turn on whether the alleged harasser is a supervisor or simply a co-worker. In Vance v. Ball State University, the Supreme Court held that a “supervisor” under Title VII must have the power to make a “significant change” in another employee’s employment status, such as through hiring, firing, failing to promote, reassigning with “significantly different responsibilities” or causing a “significant change in benefits.” In so ruling, the Court rejected the EEOC’s broader (i.e., easier to satisfy) definition of “supervisor” that includes employees who lack the authority to make tangible employment actions but who direct other workers’ day-to-day activities. Justice Alito, writing for the Court, referred to the EEOC’s definition as a “study in ambiguity” in contrast to the Court’s bright-line definition which can be “readily applied” such that an alleged harasser’s supervisory status can be more easily determined prior to trial.
In its second ruling issued on June 24th, the Court held in University of Texas S.W. Medical Center v. Nassar, that an employee claiming that his employer retaliated against him because of his protected opposition to discrimination under Title VII must prove the opposition activity was the “but for” cause of the retaliation. In Nassar, the plaintiff alleged that his employer sabotaged his job prospects because he had previously complained about a supervisor’s alleged bias against Arabs and Muslims. The lower court had ruled that a plaintiff can prevail if he shows that the retaliation is simply a “motivating factor” for an employer taking an adverse action. Justice Kennedy, writing for the Court, rejected the lower court’s reasoning and explained that the lower court-applied “mixed motive” standard only pertains to “status discrimination” under Title VII (i.e., to claims of discrimination based on race, sex and other protected characteristics) and not to retaliation claims which are treated separately under Title VII. As a result, claimants asserting retaliation claims must now meet the higher “but for” standard which had previously been applied only to discrimination claims brought under the Age Discrimination in Employment Act.
What is the lesson for employers from these two rulings? First, all employers should be sure their supervisor job descriptions clearly set forth the duties and authority of the position. Written job descriptions will carry significant weight in resolving disputes over whether an alleged harasser meets the Supreme Court’s definition of “supervisor.” Second, the “but for” standard now applicable to retaliation claims brought under Title VII may also be applicable to retaliation claims under other statutes such as the Americans with Disabilities Act (“ADA”) and the Family and Medical Leave Act (“FMLA”). That will be resolved by additional rulings likely to come. Lastly, the application of the “but for” standard to retaliation claims is likely to be very significant. Most employment lawsuits include claims of both discrimination and retaliation. In many cases the underlying discrimination claim is found to lack merit but the retaliation claim is upheld. The “but for” standard announced in Nassar will now make retaliation claims harder to prove.