In two 5-4 decisions under Title VII of the Civil Rights Act of 1964, the U.S. Supreme Court has defined new standards for who qualifies as a "supervisor" in employment workplace harassment cases, thereby changing the standard now applied in the Second Circuit. At the same time, the Court has increased an employee's burden of proof for employment retaliation lawsuits.

In Vance v. Ball State University, No. 11-556 (June 24, 2013), in an opinion written by Justice Samuel Alito, the Court ruled that an employer is strictly liable for harassment suffered by an employee when the harassment is caused by a supervisor who is empowered to take tangible employment actions, and the harassment culminates in a tangible employment action, such as hiring, firing, demoting, promoting, transferring or disciplining an employee. If the harassing employee is the victim's co-worker, and not a supervisor, then the employer is liable only if it was negligent for not controlling the harassing behavior, or, in other words, if it knew or should have known of the harassment and failed to take corrective action. If no tangible employment action is taken against the victim, the employer may escape liability if it establishes that: (1) it exercised reasonable care to prevent and correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.

In University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (June 24, 2013), in an opinion by Justice Anthony Kennedy, the Supreme Court ruled that an employment discrimination lawsuit based on retaliation must be proved by a heavier burden of proof – the "but for" causation standard – and not by the lesser burden of proof – the "motivating" factor standard – that is used for other Title VII claims based on the employee's race, color, religion, sex, or national origin.

Under the "but for" standard, a plaintiff must prove that "the unlawful retaliation would not have occurred absent the alleged wrongful action or actions of the employer."

The Supreme Court previously ruled that Title VII makes it unlawful to discriminate against anyone with respect to compensation, terms, conditions or privileges of employment because of his or her protected class status of race, color, religion, sex or national origin. Also, the Court recognized a cause of action based on vicarious liability agency principles if a work environment is so pervaded by discrimination that the terms and conditions of employment are altered, and the employer was negligent with respect to the creation or perpetuation of the offensive behavior. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986); Rogers v. EEOC, 454 F. 2d 234 (5th Cir. 1971).

In Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998), the Supreme Court previously held that different rules apply where the supervisor is the harasser. It held that the employer may be vicariously liable when the supervisor takes a tangible employment action, such as hiring, firing, failing to promote, and reassignment with significantly different responsibilities, or a significant change in benefits. The employer also may be vicariously liable when there is no tangible employment action if the employer is unable to establish a two-pronged affirmative defense: (1) it exercised reasonable care to prevent and promptly correct the harassment; and (2) the plaintiff unreasonably failed to avail preventative or corrective opportunities that the employer had provided. The Ellerth and Faragher decisions provide a framework for the Ball State University (BSU) decision.

Maetta Vance, an African-American woman, was a full-time catering assistant in the BSU dining services division. She filed complaints with BSU and the Equal Employment Opportunity Commission alleging racial harassment and discrimination against Saundra Davis, a catering specialist, for intimidating her, giving her a hard time, slamming pots and pans around, and glaring at her, among various other conduct.

Vance later brought a lawsuit in federal court claiming that Davis was her supervisor and that Davis created a racially hostile work environment in violation of Title VII. The U.S. District Court granted summary judgment dismissing Vance's complaint, explaining that since Davis could not hire, fire, demote, promote, transfer or discipline Vance, Davis was not Vance's supervisor, and BSU could not be vicariously liable in negligence because it responded reasonably to the incidents. The Seventh Circuit Court of Appeals affirmed.

Whether an alleged harasser is a "supervisor" or a co-worker and the meaning of a "supervisor" are subjects of disagreement among the federal circuit courts of appeals. Some courts hold that an employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer or discipline. See, e.g., Noviello v. Boston, 398 F. 3d 76 (1st Cir. 2005), and Weyers v. Lear Operations Corp., 359 F. 3d 1049 (8th Cir. 2004). Other courts follow the approach tied to the person's ability to exercise significant discretion over an employee's daily work activities, schedules and assignments, as advocated by the EEOC's guidelines. The EEOC's guidelines, which the U.S. Court of Appeals for the Second Circuit has followed, count as a supervisor not only anyone with authority to take tangible employment actions, but also, anyone who directs an employee's daily work activities, schedules and assignments, even if that person does not have the authority to hire, fire, demote, promote, transfer or discipline. See, e.g., Mack v. Otis Elevator Co., 326 F. 3d 116 (2d Cir. 2003).

BSU resolves the conflict among the federal circuits by rejecting the EEOC definition of "supervisor" in favor of the standards applied by the First and Eighth circuits. Therefore, "supervisors" are those employees with the authority to make tangible employment decisions, such as hiring, firing, failing to promote, suspending, reassigning or making significant changes in benefits causing the employee direct economic harm. The Supreme Court ruled that the ability to direct another employee's tasks alone is not sufficient to be designated with the status of a "supervisor" and for an employer to face strict liability. The employer's negligence provides the framework for the employer's liability when the harassing employee is a co-worker who lacks the power to take tangible employment actions.

The Court warns that if an employer confines decision making power to a small number of individuals who rely on other workers who actually interact with the affected employee, the employer may be held to have delegated the "supervisor" status and power to those employees who make the recommendations that are implemented. Therefore, although the new definition of a supervisor has been narrowed, there is room for it to be expanded in particular cases where the facts justify it.

The Supreme Court reasoned that the interpretation of a supervisor adopted now can be readily applied before litigation is commenced or after discovery, thereby enabling parties to assess the strength of a case, the possibility of resolution, or a resolution by summary judgment before trial. Also, it enables the parties to know whether the plaintiff must prove that the employer was negligent, or whether the employer will have the burden of proving the Ellerth/Faragher affirmative defenses described above. In addition, the Supreme Court states that jurors can be given preliminary instructions that allow them to understand how the proof introduced during a trial fits the legal framework to be applied by them as the evidence is introduced.

The dissent argues that the decision conflicts with the agency principles that the Faragher and Ellerth decisions affirmed, and it is blind to the realities of the workforce.

Based on the decision in BSU, employers should clearly define in job descriptions which employees have the authority to take tangible employment actions against other employees and which employees may approve or make recommendations regarding those employment actions and thereby be deemed supervisors. Preliminary jury instructions should be considered at trial, as the Supreme Court suggests.

In Nassar, the Supreme Court raised the burden of proof for employees who bring retaliation claims against employers under Title VII, and the Court defined the proper standard of causation for those claims.

Naiel Nassar, a doctor employed as a medical center faculty member and staff physician at the affiliated hospital, resigned and claimed that the chief of infectious disease medicine, Dr. Beth Levine, was biased against Arabs and Muslims, as manifested by Levine's comments that "Middle Easterns are lazy," among other statements. The hospital offered Nassar a full-time staff physician position, but withdrew the offer after his supervisor, the University's Chair of Internal Medicine, objected to the job offer because Nassar's complaint had caused Levine humiliation.

Nassar sued, alleging race and religion discrimination and retaliation for his having complained about Levine's harassment. A jury ruled in his favor and awarded Nassar $3 million in damages. The medical center appealed, arguing that the jury instruction for the retaliation claim applied an incorrect lower standard of causation to find retaliation. The medical center argued that trial judge should have instructed the jury that it had to find that the adverse employment action would not have happened "but for" the supervisor's desire to retaliate, not that the retaliation was just "a motivating factor" in the supervisor's action, as the trial court had instructed the jurors for each of the discrimination and retaliation claims asserted by Nassar.

The Firth Circuit affirmed the District Court's decision. The Supreme Court, however, disagreed and held that the wrong standard was applied for the retaliation claim.

The Supreme Court ruled that if an employee suffers retaliation for opposing, complaining about, or seeking remedies for unlawful workplace discrimination, the "but for" standard must be proved by the employee. The "but for" standard is also used for age discrimination claims brought under the Age Discrimination in Employment Act,.

The "but for" standard is not used in a discrimination case under Title VII based on the employee's personal status, such as those based on race, color, religion, sex or national origin. In the personal status discrimination cases, the employee has a lower burden of proof and must show that the employee's personal status was a "motivating" or "substantial" factor in the adverse employment decision, even if the employer had other lawful motives. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

The Supreme Court states that lessening the causation standard for retaliation claims to the "motivating factor" standard could contribute to the filing of frivolous claims, raise the costs, both financial and reputational, on an employer whose actions were not, in fact, the result of any discriminatory or retaliatory intent, and make it more difficult to dismiss dubious claims at the summary judgment stage. The Court further supports its reasoning on the text of the lessened causation test stated in 42 U.S.C § 2000-2(m), which mentions the five personal status-based factors (race, color, religion, sex and national origin), but omits reference to retaliation.

In brief, the dissent states that retaliation for complaining about discrimination is tightly bonded to and has a symbiotic relationship with the core prohibition against discrimination, and it cannot be disassociated from it. Also, the dissent argues that judges will be obliged to charge discrete causation standards for discrimination and retaliation claims that will confuse jurors.

In addition, the dissent scorns the majority for asserting that reading § 2000e-2(m) to encompass claims for retaliation "is consistent with the provision's plain language," while also acknowledging that "the text of the motivating factor provision [in § 2000e-2(m)] begins by referring to unlawful employment practices," a term that undeniably includes retaliation.

The dissent also argues that the EEOC has long stated its position that § 2000e-2(m) applies to retaliation and the motivating factor provision, and the dissent cites cases holding that retaliation against a person for complaining about discrimination is another form of intentional status-based discrimination. See, e.g. Jackson v. Birmingham Board of Education, 544 U.S. 167, 173-174 (2005), among other cases. The dissent concludes that the majority "appears driven by a zeal to reduce the number of retaliation claims filed against employers" and that this decision, along with the judgment in Vance v. BSU, "should prompt yet another Civil Right Restoration Act."

The Nassar decision identifies retaliation as a protected activity entirely discrete from status-based discrimination, and it increases the burden of proof required from employees for their retaliation claims. That, however, may create confusion for juries in cases where both discrimination and retaliation claims are brought. Careful drafting and charging of jury instructions distinguishing those claims will be essential in those cases. •