On June 24, 2013, the Supreme Court of the United States handed down two employer-friendly decisions that will make it more difficult for plaintiffs to prevail in discrimination suits based on race, color, religion, sex, or national origin under Title VII of the Civil Rights Act. These decisions will significantly and seriously effect an employee’s right to a discrimination-free workplace.
In Vance v. Ball State University, the question for the Court was how to determine when an employee’s colleague is “supervisor” for purposes of liability. In such cases, the employer would be liable for the supervisor’s harassment of the employee. The Court held that, under Title VII, a “supervisor” is one who can take “tangible employment actions” against the employee, such as hiring or firing. The employee in this case argued for a more realistic definition, in that a supervisor is one who has enough authority to “assist” the person committing the harassment. This definition would appear to have more real-world application in the workplace, considering the amount of workers who have supervisors that control their assignments, but do not have the ability to fire them. The majority of the Court dismissed such a practical definition as “nebulous” and “murky.” The minority, however, believed that such narrowing would result in under-protection for employees and that employees run many risks by confronting a harassing supervisor, and this may cause the employee to be reluctant in coming forth with the claim.
In University of Texas Southwestern Medical Center v. Nassar, the issue for the Court was the standard of proof that an employee must establish under a Title VII retaliation claim, when the employee is retaliated against by the employer for initially asserting his or her protected rights under the law. The majority, comprised of the same majority in Vance, held that the standard of proof in retaliation cases is the “but-for” standard, meaning that an employee must prove the retaliation would not have occurred but for the wrongful actions of the employer. The majority believed that this approach was beset suited to a world in which retaliation claims are being made with “ever-increasing frequency.” Previously, the standard was typically determined to be that a person’s race, religion, sex or national origin was only a “motivating factor” in the retaliatory action. The minority pointed out that the “but-for” standard would confuse juries and cause them to answer unrealistic question about how the situation would have turned out had the employer’s thoughts been different.
Both of these decisions mark yet more obstacles for employees that have been discriminated against in the workplace. On one hand, Vance sets forth an unrealistic standard for establishing a “supervisor” under Title VII. The practical reality of the workplace is that there employees often have supervisors above them that have control over their work assignments, schedules and tasks, but may not be able to fire or hire an employee on their own. These employees are certainly supervisors to the employee, but would not fit the Supreme Court’s narrow definition of a “supervisor.” At the same time, Nassar establishes “but-for” causation as the standard of proof for an employee in a retaliation case under Title VII. This unjustified standard will make it more difficult for employees to be able to prevail on the merits of their claim—so long as an employer can show another reason for its decision to retaliate against an employee, the employee will be left without a claim of retaliation. In Vance, Justice Samuel Alito noted in his opinion that the Court’s minority considered the majority’s approach to be “out of touch with the realities of the workplace.” Perhaps the minority was correct.
The Gowen Group represents employees in discrimination matters. Contact us today for a free consultation.
Special thanks to our summer intern, Tim McArdle, for his development of this blog post.