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Key Decisions for Employers – The Supreme Court Strictly Construes Title VII Discrimination and Retaliation Standards

Labor and Employment News Alert | June 26, 2013
By: Nancy Conrad

On June 24, 2013, the Supreme Court of the United States announced two five-to-four decisions that will significantly impact the strategy employers use to defend Title VII discrimination and retaliation claims.

In Vance v. Ball State University, the Court definitively answered the question of who constitutes a “supervisor” in a workplace harassment case.  The classification of a harasser as a supervisor is significant because an employer’s liability for harassment is largely dependent on the status of the harasser.  If the harasser is the victim’s co-worker, an employer is liable under a negligence standard.  Conversely, if the harasser is the victim’s supervisor and the harassment culminates in a tangible employment action, the employer faces strict liability.  In the Majority Opinion, the Court limited the definition of a supervisor to a person who is empowered by his or her employer to take a tangible employment action against the alleged victim of the harassment (that is, hire, fire, demote or transfer the alleged victim).  The Court specifically rejected the approach advocated by the Petitioner and the EEOC, which defined a supervisor, as one who “must wield authority of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment.”  The Majority dismissed this approach, and identified it as “murky” and a “study in ambiguity.”

In University of Texas Southwestern Medical Center v. Nassar, the Court held that Title VII retaliation claims must be proved according to the traditional principal of “but-for” causation, not the lessened “motivating factor” causation test.  Per the holding in Nassar, to prevail in a Title VII retaliation case, a plaintiff must establish he or she would have gotten the job “but-for” the employer taking race, sex, religion or any other protected class into account.  This standard is a greater burden of proof than the “motivating factor” test, which simply required a plaintiff to establish that his or her race, sex or religion was a motivating factor in the employer’s decision not to hire.  The Majority Opinion further supported its decision by stating that “lessening the causation standard could also contribute to the filing of frivolous [retaliation] claims, which would siphon resources from . . . employer[s].”

These decisions will undoubtedly impact an employer’s defense strategy in Title VII discrimination and retaliation claims.  Both decisions will make it harder for a plaintiff to prove his or her case.  The holdings in Vance and Nassar also improve an employer’s likelihood of success at the summary judgment stage, which will reduce the litigation defense costs and workplace interruption that employers incur.  While these cases favor employers, developing the best defense strategy to such a claim requires an intensive review of the specific facts and circumstances related to the claim.  Employers are encouraged to consult with an employment attorney as part of that analysis.

Should you need guidance or more information regarding a Title VII discrimination or retaliation claim, please contact Nancy Conrad (610.782.4909, or any member of our Labor and Employment Group. 

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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