Supreme Court Issues Two Pro-Employer Title VII Decisions
In University of Texas Southwestern Medical Center v. Nassar, the Court held that a plaintiff must prove that retaliation was the “but-for” cause of the adverse employment action. This is a stricter standard for proving causation than is applied to race, color, religion, sex or national origin cases brought under Title VII. The Court found this because the statute speciﬁcally applied a “motivating factor” standard for such status-based discrimination claims. However, because the language of the retaliation provision does not contain similar language on the standard, the Court found that the statute does not indicate any intent to depart from the “but for” standard generally used in tort law. The Court also explained that the stricter standard of proof made practical sense in retaliation cases, given the “ever-increasing frequency” with which such claims are being ﬁled. The Court expressed concern that an employee who anticipated being terminated could make a baseless discrimination claim in an attempt to set up a retaliation claim.
In Vance v. Ball State University, the same majority narrowly deﬁned who constitutes a “supervisor” for purposes of vicarious employer liability under Title VII. Under the Court’s earlier Burlington Industries v. Ellerth and Faragher v. Boca Raton decisions, plaintiffs can more easily prove a harassment claim against their employer if the alleged harasser was a “supervisor” rather than a co-worker. The Court found that a “supervisor” is someone “the employer has empowered” to “take tangible employment actions against the victim, i.e. to affect 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 asserted that this tangible employment action standard is easier to apply and, in many cases, can be resolved by a court prior to trial. These cases will provide judges greater authority to decide retaliation and harassment cases on summary judgment and prevent the cases from being heard by a jury. Employers should be aware, however, that these legal standards may not apply to state and local employment laws.