On June 24, 2013, the U.S. Supreme Court issued a pair of 5–4 decisions restricting employment discrimination claims under Title VII of the Civil Rights Act of 1964 by adopting a strict standard of proof for retaliation claims and a narrow definition of "supervisor" for purpose of employer liability. The Court acknowledged its intent to facilitate early disposition of such cases.
The Retaliation Case
Title VII prohibits discrimination based on race, color, religion, sex or national origin ("status claims") and retaliation for challenging discriminatory practices or submitting a discrimination complaint ("retaliation claims"). Status claims require proof only that the plaintiff’s race, color, religion, sex or national origin was "a motivating factor" for an adverse employment practice, even if there were other legitimate motivations as well, according to an express statutory test. Whether retaliation claims are also subject to that liberal statutory test was an open question until now.
In University of Texas Southwestern Medical Center v. Nassar,1 the Supreme Court (in an opinion written by Justice Kennedy) held that Title VII retaliation claims are governed by a stricter "but for" causation test: that is, the plaintiff must prove that the adverse employment action would not have occurred in the absence of a retaliatory motive. Thus, in "mixed motive" cases, where there is some evidence of retaliation but the employer invokes a legitimate business justification for its action, the plaintiff will have to overcome the evidence of legitimate justification and prove that the adverse action would not have occurred "but for" the retaliatory motive.
The Supervisor Case
An employee can assert a claim under Title VII if his or her employer creates or permits a discriminatory work environment that effectively alters the employee’s terms and conditions of employment (a "hostile environment" claim). If the workplace harassment that creates a hostile environment is committed by an employee’s supervisor, the employer is vicariously liable for the conduct. But if the harassment is committed by a fellow employee, the employer is liable only if it has been negligent in preventing the offensive behavior.
The lower courts have applied two tests to determine whether a person is a supervisor under Title VII. Some have said that a supervisor is a person with power to take "tangible employment action," such as hiring, firing, promoting, demoting, transferring or disciplining an employee. Other courts (and the U.S. Equal Employment Opportunity Commission) have said that a supervisor includes not only a person who can hire or fire an employee but also anyone who can exercise significant direction over an employee’s daily work.
In Vance v. Ball State University,2 the Supreme Court (in an opinion by Justice Alito) adopted the narrower "tangible employment action" test. The employer will be strictly liable for workplace harassment committed by a person with authority to hire, fire, promote, demote, transfer or discipline the complaining employee. If the harassment is committed by a person who oversees and directs the complaining employee’s daily work – but lacks authority to hire and fire or take other "tangible" action – then the complaining employee will have to prove that the employer was negligent in failing to prevent the harassment.
The Supreme Court’s Rationale
The Supreme Court invoked "textbook tort law" on causation and the structure of Title VII in support of its holding in the retaliation case and a close analysis of prior case law in the supervisor case. But its real-world rationale was to curb what a majority of the Court views as non-meritorious employment litigation in the federal courts by setting bright-line tests to facilitate early disposition of cases. Thus, Justice Alito in Vance rejected a "nebulous" test of supervision that would "frustrate judges and confound juries," and Justice Kennedy in Nassar declared that a narrow causation test for retaliation would allow the lower courts "to dismiss dubious claims at the summary judgment stage."
Justice Ginsburg (joined by Justices Breyer, Sotomayor and Kagan) dissented in both cases precisely because of the majority’s rationale, which the dissent characterized as "zeal to reduce the number of . . . claims filed against employers."
1 U.S. Supreme Court No. 12-484 (June 24, 2013).
2 U.S. Supreme Court No. 11-556 (June 24, 2013).
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