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Supreme Court Makes it Harder to Prove Job Bias Claims
The National Law Journal
In back-to-back, divided rulings on Monday, the U.S. Supreme Court raised the bar for employees seeking to prove discrimination in their workplaces.
The justices split along ideological lines in two cases, one concerning the definition of “supervisor” for purposes of Title VII liability, and the other, involving the burden of proof in Title VII retaliation claims—the fastest growing category of discrimination claims under Title VII of the Civil Rights Act of 1964.
In Vance v. Ball State University, the 5-4 majority, led by Justice Samuel Alito Jr., held that an employee is a supervisor when the employer has empowered that worker “to take tangible employment actions against the victim” such as hiring, firing, failing to promote, reassignment or some other action causing a significant change in employment status.
Alito, joined by Chief Justice John Roberts Jr. and justices Antonin Scalia, Anthony Kennedy and Clarence Thomas, rejected the “nebulous,” “open-ended” definition advocated by the Equal Employment Opportunity Commission for the past 14 years. Under the EEOC’s definition, a supervisor could be either someone who has authority to take a tangible employment action or someone who exercises significant direction over another’s work.
The narrower definition, Alito wrote, is “easily workable; it can be applied without undue difficulty at both the summary judgment stage and at trial. The alternative, in many cases, would frustrate judges and confound jurors.”
The majority disagreed with the dissenters’ claim that its approach would leave employees unprotected against harassment by co-workers who have authority to inflict psychological injury by assigning unpleasant tasks or altering the work environment in objectionable ways.
“In such cases, the victims will be able to prevail simply by showing that the employer was negligent in permitting this harassment to occur,” Alito wrote. He said the majority’s decision flowed from the court’s 1998 rulings in Burlington Industries v. Ellerth and Faragher v. Boca Raton.
The decision affirmed a ruling by the U.S. Court of Appeals for the Seventh Circuit against Maetta Vance, an African-American woman who sued her employer claiming that a co-worker had created a racially hostile work environment. The circuit courts were split over the definition of supervisor.
The same conservative majority, led this time by Kennedy, held in University of Texas Southwestern Medical Center v. Nassar that Title VII retaliation claims require employees to prove that the unlawful retaliation would not have occurred in the absence of the employer’s alleged wrongful action—so-called “but for” causation.
The but-for standard is a higher standard of proof than the one advocated by the EEOC and used by many courts, but it is the same standard that the court adopted for age discrimination claims in its 2009 decision Gross v. FBL Financial Services. In that 2009 decision under the Age Discrimination in Employment Act, a divided court held that a plaintiff must prove that age was the “but for” cause of the employer’s adverse action, meaning that age was the single or determining motive.
A number of courts had been applying a different and lesser standard in Title VII cases. They required plaintiffs to show only that the discrimination was a motivating factor in the employer’s wrongful act.
Writing for the majority in Nassar, Kennedy said the motivating-factor standard only applies to discrimination claims based on five specified criteria in Title VII: race, color, religion, sex and national origin—discrimination based on personal characteristics.
Retaliation, he said, is in a separate section of the federal law. “Given the lack of any meaningful textual difference between the text in this statute and the one in Gross, the proper conclusion here, as in Gross, is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action,” Kennedy wrote.
The majority remanded the case to the Fifth Circuit. The case stemmed from a lawsuit by Dr. Naiel Nassar, a Muslim from the Middle East, who was on the University of Texas faculty. He claimed that his supervisor harassed him because of his religion and national origin and that the university had interfered with another job opportunity because of his discrimination complaint.
Justice Ruth Bader Ginsburg, joined by justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, read a summary of her dissents in both cases from the bench. After giving examples of employees who would be left unprotected by the decision in Vance, she said, “As anyone with employment experience can easily grasp, in-charge employees authorized to assign and control subordinate employees’ daily work are aided in accomplishing their harassment by the superintending position in which their employer places then, and for that reason, the employer is properly held responsible for their misconduct.”
As she read her summary, Alito, the author of Vance, silently and repeatedly shook his head in the negative.
On the Nassar ruling, she said the majority departed from “a line of our decisions, unbroken until today, teaching that retaliation for complaining about discrimination based on protected characteristics is a form of discrimination based on those characteristics.” As she did six years ago in the Ledbetter v. Goodyear Tire, she called on Congress to correct the court’s “wayward” interpretations of Title VII.
Debra Katz of Washington’s Katz, Marshall & Banks, a labor-side law firm, called the decisions “a one-two punch” and a “tremendous setback” for employees and for Title VII’s goal of eradicating workplace discrimination. “One of the big losers is the EEOC,” she said. “The court has shown such disregard and contempt for the EEOC—it’s breathtaking.”
And Mary Kay Henry, international president of the Service Employees International Union, said the Vance decision wrongly limited “who could be held responsible for harassment, allowing lower-level supervisors to continue discriminatory behavior and leaving workers with no recourse to seek justice.
“Similarly, the Nassar decision is a blow to workers’ rights on the job,” she said. “The decision puts an unreasonable, higher burden of proof on the employee to prove retaliation by their employer and will chill workers’ willingness to speak up about discrimination on the job.”
However, management-side lawyers applauded the decisions.
“If you operate in a state that had previously adopted a broad definition of ‘supervisor,’ you now have the assurance that only supervisors—defined as those who have authority over tangible employment decisions—can create vicarious liability for harassment under Title VII,” said Randall Coffey of Fisher & Phillips. “Courts will look closely at the relationship between the harasser and the victim when assigning liability.”
“In adopting the ‘but for’ standard, the U.S. Supreme Court has finally put the brakes on the runaway train of retaliation claims facing employers, imposing a higher standard on plaintiffs to establish causation,” said Gregory Keating, co-chairman of Littler Mendelson’s whistleblowing and retaliation practice.
Marcia Coyle can be reached at firstname.lastname@example.org.