A pair of employment law decisions handed down by the U.S. Supreme Court this week made it harder for employees to prove harassment and retaliation in the workplace. But while the 5-4 decisions in Vance v. Ball State University [PDF] and University of Texas Southwestern Medical Center v. Nassar [PDF] were favorable to employers, experts say that both cases reaffirm the need for companies to have formal workplace policies addressing Title VII.
Camille Olson, a partner with Seyfarth Shaw, says, “The point of our nondiscrimination and nonharassment laws is to have these issues, to the extent that they exist, raised in the workplace and eliminated immediately.”
Olson points out that unlike the Fair Labor Standards Act and the National Labor Relations Act, Title VII doesn’t define who or what a “supervisor” is. In Vance, the Court held that an employee is a supervisor when the employer has empowered that worker “to take tangible employment actions against the victim,” including hiring, firing, failing to promote, reassignment, or some other action causing a significant change in employment status.
The decision established a bright-line standard for determining employer liability, based on whether the employee in question meets the definition of a supervisor or is simply a coworker. If the individual who allegedly committed harassment is a coworker, she says, the employer will be liable only if it was negligent in controlling the working conditions.
Does this mean that, after Vance, an employee has nowhere to go if they’re claiming harassment by a coworker? Employees can and should report all claims to their human resources department, says Olson. “And whether or not the employee goes to HR, the employer will still be exposed to liability if they knew or should have known about the harassment,” she says.
She says the decision is a good reminder for employers to revisit the issue of harassment, asking: When did we do training last? Is our harassment policy up to date? Are we keeping track of any complaints, and have they been resolved? What does our workplace look like from a liability perspective?
Katharine Parker, co-head of Proskauer Rose’s Employment Law Counseling and Training Group, says of Vance, “Employers are not off the hook.” She notes that the Court’s decision “underscores the importance of having appropriate workplace policies that prohibit discrimination and harassment and outline internal complaint procedures for handling complaints.”
Having solid polices in place that are enforced will not only assist in the prevention of harassment by coworkers and supervisors, she says, it will provide a defense under both a negligence standard and a vicarious liability standard.
In Nassar, the Court held that Title VII retaliation claims require employees to prove that the retaliation was not just a motivating factor, but determinative in its decision to take adverse action. The “but-for” standard is a higher standard of proof than what has been applied by many courts.
Gregory Keating, co-chair of employment law firm Littler Mendelson’s Whistleblowing and Retaliation Practice, says the new standard is the Supreme Court’s attempt to say to employees, “If you’re able to show that ‘but-for’ your complaining you wouldn’t have been terminated, then you’ve got a claim.”
What it also does is prevent poor-performing employees who sense they were about to be terminated from “wrap[ping] themselves in a bubble” by complaining about discrimination, Keating says.
In cases where an employee suffers adverse action not because they complained, but because of a documented history of incidents that ultimately led to the termination, Keating says, this ruling “is going to dramatically help me win summary judgment.”
The good news is, he says, there are several steps an employer can take to both handle discrimination complaints appropriately and establish a strong evidentiary record against retaliation, including:
- Have an integrated reporting system in place: Long before an employee complains about discrimination, establish an incident-management system, and be sure that everyone along the reporting chain knows their role.
- Commit to prevention training: Make online and in-person trainings available for managers, human resources professionals, in-house lawyers, and senior managers.
- Have underlying support documents ready: Companies need a formal code of conduct that clearly reflects the values of the company, as well as standalone reminders that the company won’t tolerate any reprisals of any kind for a good-faith complaint.
Keating notes that without a document history, “then it’s the supervisor’s word against the employee’s—it’s an issue of fact—and we’re going to go to trial.”
