Supreme Court Issues Two Employer-Friendly Decisions Addressing Liability for Supervisor Harassment and the Standard for Proving Retaliation Under Title VII
Yesterday the United States Supreme Court issued two decisions important for employers litigating harassment and retaliation claims under Title VII. In the first case, Vance v. Ball State University, the Court decided an important issue relating to an employer's liability for harassment of an employee by a “supervisor.” More specifically, the Court decided a dispute concerning what it means to be a “supervisor”—i.e. does the employee need to have authority to hire and fire and make similar decisions or is it enough if the employee directs the daily work of others(the latter approach being the approach endorsed by the EEOC)? This issue is significant because employer liability for harassment under Title VII varies depending on whether the alleged harasser is a supervisory employee or a co-worker. If the harasser is a supervisor, the employer generally is vicariously liable for the harassment. If the harasser is not a supervisor but a co-worker of the victim, then the employer generally only is liable if it knew or should have known of the harassment and failed to take prompt and effective remedial action. Prior to yesterday's decision, courts disagreed over the meaning of the term “supervisor” and thus parties to harassment suits under Title VII generally had to litigate whether the alleged harasser qualified as a supervisor (with Plaintiffs' attorneys of course arguing broadly for supervisor status, and employers urging a narrow view of supervisor status).
In yesterday's 5-4 decision, the Supreme Court provided the needed clarification and guidance on this issue, defining the term “supervisor” narrowly in a way that benefits employers. The Court held that to be considered a supervisor, the employee must be empowered by the employer to take “tangible employment actions against the victim.” This means that the employee must have the power 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 rejected as “nebulous” the EEOC's (and many circuit court's) definition of a supervisor to include anyone with the ability to significantly direct another's daily work.
The Supreme Court's decision is a favorable one for employers because it narrows the circumstances under which employers can be held vicariously liable for harassment, and should reduce litigation costs that previously had to be expended litigating whether the alleged harasser was a supervisor or not.
In another employer-friendly Title VII decision issued yesterday, University of Texas Southwestern Medical Center v. Nassar, the Court (also in a 5-4 decision) decided a split among the circuits concerning the standard for proving retaliation claims under Title VII (meaning claims that an employee was retaliated against for complaining about discriminatory practices in violation of Title VII). Prior to yesterday's decision, some courts had held that an employee need only prove that a retaliatory motive was “a motivating factor” behind the adverse employment action. Other courts held that an employee, in order to prevail, has a higher burden of proving that a retaliatory motive was the “but for” cause of the adverse employment action. The Supreme Court has now spoken and held that the standard for proving a retaliation claim under Title VII is “but for” causation. This decision similarly is favorable for employers litigating Title VII retaliation claims because it makes it more difficult for the plaintiff to prove and prevail on the claim. The full decision in Nassar is available here.
It has been a good week for employers on the United States Supreme Court front.