The U.S. Supreme Court Redefines Two Important Standards In The Employment Discrimination Context
The U.S. Supreme Court issued back-to-back opinions on June 24, 2013, redefining two legal standards that form the core of many employment discrimination claims. First, the Court issued University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, in which it held that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action, and not simply a motivating factor. Next, the Court issued Vance v. Ball State University, 133 S. Ct. 2434, holding that an employee is a "supervisor" for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim. These decisions are sure to have significant and long lasting effects on current and future employment discrimination actions.
University of Texas Southwestern Medical Center v. Nassar
The University of Texas Southwestern Medical Center is an academic institution specializing in medical education. The University is affiliated with Parkland Memorial Hospital such that Parkland is required to offer empty staff physician posts to University faculty members. Naiel Nassar is a medical doctor of Middle Eastern descent who specializes in internal medicine and infectious diseases. He was employed as an assistant professor at the University and as a physician at Parkland. On several occasions during his employment, Nassar met with Dr. Gregory Fitz, the University's Chair of Internal Medicine, to complain that he was being harassed on the basis of his national origin by fellow doctor Beth Levine. Nassar resigned his teaching post in July 2006, and wrote Dr. Fitz stating that the reason for his departure was harassment by Levine. Meanwhile, the Hospital had offered Nassar a job as a staff physician. Dr. Fitz protested to the Hospital, which withdrew its offer to Nassar. Nassar then filed suit in federal district court alleging that he was constructively discharged by the University and that Dr. Fitz's efforts to prevent Parkland from hiring him were in retaliation for complaining about Dr. Levine's harassment. The jury rendered a verdict in favor of Nassar and the Fifth Circuit affirmed on the issue of retaliation, holding that the evidence supported a finding that Dr. Fitz was motivated, at least in part, to retaliate against Nassar for his complaints against Levine.
The U.S. Supreme Court granted certiorari to address the proper standard of causation for Title VII retaliation claims. Specifically, the Court sought to define whether retaliation claims are subject to a but-for causation standard, or whether they merely require that retaliatory intent be a motivating factor in the adverse employment action. The Court noted that an employee alleging status-based discrimination under 42 U.S.C. §2000e-2 need only show that the intent to discriminate was one of the employer's motives, even if the employer also had other, lawful motives for the decision. The Court stated, however, that Title VII's anti-retaliation provision appears in a different section from the status-based discrimination ban, and makes it unlawful for an employer to take an adverse employment action against an employee "because" of certain criteria. The Court therefore held that the standard for retaliation claims was distinct from that applied in the status-based discrimination context, and that retaliation claims must therefore be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e-2. The Court stated that this requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer. It vacated the Fifth Circuit's decision as inconsistent with this standard and remanded the case for further proceedings.
Vance v. Ball State University
Plaintiff Maetta Vance, an African American woman, began working for Ball State University in 1989 as a substitute dining server, and was eventually promoted to the position of full-time catering assistant. Over the course of her employment with Ball State, Vance lodged numerous complaints of racial discrimination and retaliation. One of those complaints concerned fellow employee Saundra Davis, a white woman employed as a catering specialist. Vance claimed that Davis would give her a hard time at work, blocked her from entering an elevator and that she would often give her weird looks. This alleged harassment went unaddressed by Ball State and in 2006 Vance filed suit in federal district court claiming, among other things, that she had been subjected to a racially hostile work environment in violation of Title VII. In her complaint, Vance alleged that Davis was her "supervisor" and that Ball State was liable for Davis' creation of a racially hostile work environment.
This claim by Vance has its genesis in the Ellerth and Faragher cases handed down by the U.S. Supreme Court in 1998. In those cases, the Court held that an employer may be vicariously liable for an employee's creation of a hostile work environment if it can first be established that the employee is the plaintiff's "supervisor." If "supervisor" status is established, an employer will be vicariously liable in two situations. The first situation is when the supervisor takes a tangible employment action against the employee-i.e. hires, fires, demotes, reassigns, or causes a significant change in benefits. Second, an employer can also be vicariously liable even in the absence of a tangible employment action if it is unable to establish an affirmative defense. Per Ellerth and Faragher, an employer can establish an affirmative defense to vicarious liability by showing (1) that it exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities that were provided.
Vance's action against Ball State turned on the threshold issue of whether Davis could be considered Vance's "supervisor." The precise definition of a "supervisor" was left open by Ellerth and Faragher and served as a source of considerable disagreement among the lower courts. Vance argued that Davis was her supervisor because Davis had leadership responsibilities and at times led or directed Vance and other employees in the kitchen. Ball State argued, however, that Davis did not have the power to hire, fire, demote, reassign, or cause a significant change in Vance's benefits, and that she therefore could not be considered her supervisor. The district court agreed with Ball State and granted summary judgment in its favor dismissing Vance's claim. The appellate court affirmed that decision and the Supreme Court then granted certiorari. On review, the Court held that an employee is a "supervisor" for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim. The Court defined a tangible employment action as 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 concluded that Davis did not have the power to take these actions against Vance, and that she therefore could not be considered Vance's supervisor.
The U.S. Supreme Court has redefined two important standards in the employment discrimination context which make it more difficult for a plaintiff to plead and prove discrimination and retaliation claims. Specifically, a plaintiff must now establish that an individual committing harassment had the ability to take a tangible employment action against the plaintiff in order for that individual to be considered a "supervisor" in the context of a hostile work environment claim. Additionally, in order to establish a claim for retaliation under Title VII, an employee must now demonstrate that retaliatory motivation was the but-for cause of an adverse employment action, and not simply a motivating factor.