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Supreme Court Hands Down TwoEmployer Friendly Employment Decisions

On June 24, 2013, the conservative cabal of the U.S. Supreme Court handed down by 5-4 margins two employment decisions that favor employers in employment discrimination and retaliation cases under Title VII. Vance v. Ball State Univ., 2013 U.S. LEXIS 4703 and Univ. of Tex. Southwestern Medical Center v. Nassar, 2013 U.S. LEXIS 4704.

Vance v. Ball State University

In Vance, the Court ruled that for Title VII purposes, the definition of a “supervisor” for purposes of vicarious liability is an employee empowered by the employer to take tangible employment actions against the victim. “Tangible employment actions” include 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.

Therefore, a “supervisor” would not include another co-worker who only possesses some authority to direct an employee or assign daily tasks, such as a lead worker.

The Vance case is not too startling, since other laws affecting the workplace have similar definitions of “supervisor.” The National Labor Relations Act has consistently been interpreted to exclude employee workplace rights to “supervisors” vested with genuine management prerogatives such as the right to hire or fire, discipline or make effective recommendations for such and grant such rights to straw bosses, leadmen, set-up men and other minor supervisory employees.

However, the Nassar case has far reaching effect for those plaintiffs challenging an adverse employment action with a claim of retaliation under Title VII.

University of Texas Southwestern Medical Center v. Nassar

The facts of this case are of little importance to the holding concerning what burden of proof plaintiffs must sustain in order to prevail.

The respondent in this case was a physician of Middle Eastern descent. In his suit he claimed that a local hospital’s failure to hire him for a vacant position was due to the retaliation he faced when he complained to a University head physician where he taught about his co-worker’s religious and ethnic harassment of him.

Even though a jury found for him on his retaliation claim and the Fifth Circuit affirmed, the U.S. Supreme Court vacated the victory. It held that Title VII retaliation claims must be proved according to a “but for” causation standard, that is, an employee must show that she suffered an adverse employment action “because of” the illegal motive.

The Court used a tortured approach to distinguishing the burden of proof for discrimination claims versus retaliation claims.

In discrimination claims, a plaintiff need only show that race, color, religion, sex or national origin was “a motivating factor” for the unlawful employment practice, even though other factors, perhaps legitimate, also motivated the practice.

However, the Court held that retaliation claims require proof that the desire to retaliate was the “but-for” cause of the challenged employment action, that the employer would not have taken the adverse employment action but for a design to retaliate.

Like the Vance case, the dissent, which even challenges the decision as lacking a common sense about the workplace, was written by Justice Ginsburg and joined by Justices Breyer, Sotomayor and Kagan. It criticized the Court’s double standard which would confuse jurors, the Court’s desire to reduce the number of retaliation cases that have been filed and the Court’s rejection the Equal Employment Opportunity Commission’s guidance on retaliation claims.

Prediction: a bill will be passed, not soon enough, similar to the Lilly Ledbetter Fair Pay Act of 2009, correcting the Supreme Court’s decision.