On Monday, June 24, 2013, the Supreme Court published important decisions in two employment cases. In Vance v. Ball State University, the Supreme Court held that for the purposes of vicarious liability under Title VII, an employee is a “supervisor” if he or she is empowered by the employer to take tangible employment actions against the victim. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court held that retaliation claims under Title VII must be proved by the employee according to the but-for causation test, rather than the less stringent motivating factor test applicable in discrimination cases. Both cases were decided by a narrow 5-4 vote of the justices along ideological lines, with Justice Ruth Bader Ginsburg authoring vigorous dissents to both decisions.
Vance v. Ball State University
According to the Supreme Court’s landmark cases in Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton, under Title VII, an employer’s liability for harassment can turn on whether the harasser is a co-employee or a supervisor of the victim. If the harasser is a co-employee, the employer is only liable if it was negligent in controlling working conditions. If the harasser is a supervisor, the employer can only escape liability if it establishes that no tangible employment action was taken, the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Since those cases were decided, lower courts and employers have grappled with the definition of a supervisor for the purposes of Title VII vicarious liability.
Maetta Vance, an African-American woman, sued Ball State University (BSU), her employer, arguing that another employee created a hostile work environment in violation of Title VII. Vance, a catering assistant, filed several claims of racial discrimination and retaliation during her employment with BSU, including some concerning a catering specialist she worked with.
After filing a claim with the Equal Employment Opportunity Commission (EEOC), Vance was issued a right to sue letter by the EEOC and filed her claim in federal court. The parties agreed that the catering specialist did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. Vance argued that an employee is a supervisor if the employee has the ability to control another employee’s day to day actions. The employer argued that the employee had to have the ability to take tangible employment actions in order to qualify as a supervisor for the purposes of Title VII. The federal court granted summary judgment in favor of BSU on all of Vance’s claims. Vance appealed only the hostile work environment and retaliation claims under Title VII of the Civil Rights Act of 1964 to the Seventh Circuit Court of Appeals. The Seventh Circuit affirmed, holding that supervisor status requires “the power to hire, fire, demote, promote, transfer, or discipline an employee.” Vance petitioned the Supreme Court which granted certiorari.
The Supreme Court was faced with the issue of who qualifies as a “supervisor” in cases where an employee files a harassment claim under Title VII. When the Supreme Court granted certiorari, there was a split among the circuits with some circuits holding that supervisor liability applies to harassers whom the employer vests with authority to direct and oversee the victim’s daily work, and others holding that supervisor liability only applies to those harassers whom the employer vests with the power to hire, fire, demote, promote, transfer, or discipline an employee.
In its decision, the Supreme Court stressed the need for a clear standard for distinguishing co-employees from supervisors so that supervisor status could be determined before litigation begins rather than by having the issue determined by a jury. It held that “an employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.” The Supreme Court went on to say that tangible employment actions “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.” In so holding, the Supreme Court explicitly rejected the broad definition of “supervisor” adopted by some circuits and the EEOC that made the employer vicariously liable for the actions of employees that oversee and direct the work of other employees even where they lack the authority to take tangible employment actions.
In the Vance case, the employer prevailed because Vance was unable to show that the employee who discriminated against her was a “supervisor” under the Supreme Court’s definition.
After the Supreme Court’s ruling, an employee will only be a “supervisor” for the purposes of vicarious liability under Title VII if the employee is vested with the authority to take tangible employment actions such as the ability to hire, fire, demote, promote, transfer, or discipline an employee. If an employee is not empowered with that authority, the employer is only liable for harassment under Title VII if it is negligent in controlling working conditions. However, the California Fair Employment and Housing Act broadly defines supervisors to include persons who have the “responsibility to direct” employees. This decision makes it even more likely that employees in California will bring harassment claims against employers under the FEHA instead of Title VII.
University of Texas Southwestern Medical Center v. Nassar
In Nassar, the Supreme Court considered whether a claim for retaliation under Title VII requires the claimant to prove that, absent (but-for) the improper motive, the adverse employment action would not have been taken; or whether the employee must only prove that the improper motive was a motivating factor in the adverse employment action. The Supreme Court held that the employee must prove that but-for the employer’s unlawful retaliation, the employee would not have suffered the adverse employment action.
Title VII of the Civil Rights Act of 1964 prohibits an employer from retaliating against an employee for complaining about discrimination or filing a claim with the Equal Employment Opportunity Commission regarding discrimination. Under normal principles of civil liability, a plaintiff must show that if the defendant had not committed the illegal act, the plaintiff would not have suffered harm. To change this result in the area of discrimination, Congress enacted a statute that established liability against the employer when the employee proves that discrimination was “a motivating factor for any employment practice, even though other factors also motivated the practice.” Under this standard, even if the employer can show that it would have taken the adverse employment action anyway, the employer is only relieved of damages, but not necessarily from injunctive relief or attorney’s fees. The employee in Nassar asked the Supreme Court to extend this standard to Title VII cases involving retaliation.
University of Texas Southwestern Medical Center (University) specializes in medical education and affiliated itself with Parkland Memorial Hospital (Hospital). Under the affiliation agreement, the Hospital is required to offer vacant staff physician positions to University faculty members. Dr. Nassar was a doctor of Middle Eastern descent who was hired to work at the University and as a physician in the Hospital. Dr. Nassar alleged that his ultimate supervisor, Dr. Beth Levine, was biased against him based on his religion and ethnic heritage. Dr. Nassar met with Levine’s supervisor, Dr. Fitz, to complain about the alleged harassment. Dr. Nassar arranged to continue working at the Hospital without also being a faculty member with the University. He then resigned his post in a letter to Dr. Fitz and others that alleged his resignation was due to harassment by Dr. Levine. Dr. Fitz was upset by what she saw as Dr. Nassar’s public humiliation of Dr. Levine. The Hospital offered Dr. Nassar a job as a staff physician, but the offer was rescinded after Dr. Fitz protested to the Hospital and insisted on the affiliation agreement provision requiring the Hospital to offer vacant positions to University faculty members.
After the offer was rescinded, Dr. Nassar filed two claims in federal court, arguing that Dr. Levine’s racially and religiously motivated conduct had resulted in his constructive discharge, and arguing that Dr. Fitz’s actions in preventing the Hospital from hiring him were in retaliation for complaining about harassment. The jury returned a verdict for Nassar on both counts. The Court of Appeal for the Fifth Circuit vacated the constructive discharge verdict based on insufficient evidence, but affirmed the retaliation verdict. In affirming the retaliation verdict, the Fifth Circuit held that retaliation claims only require the employee to prove that retaliation was a motivating factor for the adverse employment action, rather than the but-for cause. The Supreme Court granted certiorari to define the proper causation standard for retaliation claims under Title VII.
The Supreme Court held that, absent a contrary indication by Congress, it is presumed that the but-for causation standard applies. With respect to claims alleging status-based discrimination, Congress passed the Civil Rights Act of 1991 which changed the burden of proof to require only that the employee “demonstrate that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” The Supreme Court found the argument that the motivating factor test applied to retaliation claims flawed for three reasons. First, the 1991 provision’s plain language only extends to discrimination claims on the basis of “race, color, religion, sex, or national origin”; second, Congress inserted the motivating factor provision in a subsection that deals only with status based discrimination; and third, in an exhaustive, complex statute like Title VII, the Supreme Court will not infer a congressional intent to prohibit retaliation based on broadly worded anti-discrimination statutes.
The Supreme Court also expressed concern with the number of retaliation claims filed and noted that if the lower causation standard was applied, an employee who anticipated being subject to an adverse employment action could file a frivolous discrimination claim so that, if the adverse employment action occurred, the employee could then claim it was in retaliation for the discrimination charge.
After the Supreme Court’s decision in Nassar, an employee bringing a Title VII retaliation claim must show that his or her protected activity was the but-for cause of the adverse employment action by the employer. In other words, instead of merely showing that the retaliation was one of the motivating factors in the adverse employment action, the employee must show that if it were not for the employee’s protected activity, the employer would not have taken the adverse employment action against the employee. Although the California Supreme Court has not addressed this issue specifically in regards to retaliation claims, it did recently address the standard for mixed-motive FEHA discrimination claims in Harris v. City of Santa Monica. Under the FEHA, an employee claiming discrimination must show that his or her protected activity was a substantial motivating factor in the adverse employment action. However, if an employer proves under FEHA that it would have taken the adverse action for lawful reasons, the employer can avoid liability for monetary damages, back pay and reinstatement.