LARSON KING LABOR & EMPLOYMENT ATTORNEYS RECAP RECENT SCOTUS DECISIONS
In University of Texas Southwestern Medical Center v. Nassar, the United States Supreme Court vacated and remanded a Fifth Circuit decision that found an employer had unlawfully retaliated against a former employee based on an application of the “motivating factor” test. The Court held that the proper test that should have been applied instead was the traditional, yet much more stringent “but for” test.
The case involved a medical doctor that, because of alleged discrimination, requested a transfer from the medical school in which he worked to an affiliated hospital. Believing that he had successfully secured a transfer of employment to the hospital, the doctor wrote a letter of resignation to the school in which he accused his former supervisor of discrimination. Upon discovering that his transfer was not effective, the doctor found himself unemployed and filed suit against the medical school for refusing to allow the doctor to transfer or otherwise keep him employed. The doctor thus alleged that the medical school had constructively discharged and retaliated against him in violation of Title VII of the Civil Rights Act, 42 U.S.C. sec. 2000, et seq.
Importantly, neither the statute nor the courts had definitively answered the question of what standard of proof would apply in Title VII retaliation cases such as this. In 1991, Congress amended Title VII so that, in discrimination cases, employees needed to show that the alleged discrimination was a “motivating factor” in the employment decision in order to make out a prima facie case. However, an employer could defend itself by producing evidence that that it would have taken the same action anyway. In contrast, under the ADEA, an employee must show that, “but for” the alleged age discrimination, the employer would not have taken the same adverse action. Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009).
Here, the Court was confronted with the question of what standard should apply – that traditionally applied to other claims under Title VII or the higher standard applied to retaliation claims based on other anti-discrimination statutes. The Court held that the plaintiff needed to satisfy the traditional “but-for” causation to prevail rather than the lesser “motivating factor” standard, demonstrating only that the retaliation was one of a number of factors in the employment decision. For employers, the Court’s decision will probably deter the wading tide of frivolous lawsuits awaiting the adoption of a lesser standard. Employers should, nonetheless, remain vigilant in seeking to eradicate discrimination from its workplace practices and procedures.
In Vance v. Ball State University, the court answered the question of who qualifies as a “supervisor” for purposes of employer liability in a Title VII harassment case, adopting a narrow definition of “supervisor.”
The plaintiff in the case was a catering assistant working for Ball State University. After allegedly begin harassed by another employee who was responsible for assigning daily tasks, the plaintiff sued her employer on the basis of a racially hostile work environment in violation of Title VII. Under Title VII, employers may be strictly liable for harassment by a “supervisor.” The plaintiff, seeking to have that standard apply to her case, argued that her fellow co-worker – who had directed her day-to-day activities – was actually her “supervisor.”
Until this case, there was no clear answer on exactly who constituted a “supervisor” for purposes of applying the strict liability standard. The Circuit Courts were split, with some ruling that a supervisor was someone that had the power to make a “tangible” job action that concerns the employee, and others holding that a supervisor was someone that controlled or directed an employee’s daily assignments. The plaintiff’s attorneys asked the Supreme Court to weigh in.
The majority held that a “supervisor” is someone whom “the employer has empowered” 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.” The Court reasoned that the “tangible employment action standard” had the significant advantage of being susceptible to resolution in many cases by a court well before trial.
The Court’s ruling, while considered favorable to employers, will not insulate employers from claims arising out of abusive workplaces. Employers should still continue to maintain appropriate mechanisms for reporting and promptly resolving legitimate reports of workplace harassment. As the majority cautioned: employers can still be held to account for being “negligent in failing to prevent harassment from taking place.”
For questions or guidance regarding the impact of these decisions on your business, contact a labor & employment attorney at Larson • King.
