Ealier we published an alert just minutes after the Supreme Court handed down two significant Title VII decisions giving pro-business groups a clear victory, and dividing predictably along partisan lines — the five Republican-appointed justices in the majority and the four Democratic-appointed justices collaborating on dissents.  Because we did not yet have copies of the court decisions, we actually reprinted in toto an article by New York Times writer Teresa Tritch.

18550646_sHaving had some time to digest these decisions, I was asked to write about them by Employee Benefits News, and below is a copy of my article.

“At issue were (1) the definition of the word “supervisor” as it pertains to the individuals at a company whose acts of harassment the company can be held vicariously liable for; and (2) the standards for imposing retaliation liability on employers. In the first case, the court narrowed the definition of “supervisor,” holding that, “An employer can be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim.” In the second case, the court narrowed the rights of employees who claim retaliation for complaining about employment discrimination.

Vance v. Ball State University

The plaintiff in this case was an African-American employee doing catering work at a university, who alleged that she was racially harassed by a white co-worker, and therefore the company was liable under Title VII for maintaining a hostile workplace. The co-worker had no power to “hire, fire, demote, promote, transfer or discipline” plaintiff.

The court discussed at length the difference in imputing liability to the employer for the acts of an employee depending on whether the alleged harasser is a “supervisor” or merely a co-worker — a matter of some significance under established legal standards for harassment claims. As Nina Totenberg of National Public Radio described it, “Under previous court rulings, the justices have held that an employer is automatically liable under the 1964 Civil Rights Act for the actions of supervisors who harass the workers under their control. If, however, the harasser is a co-worker and not a supervisor, the company is only liable if it was negligent in responding to a complaint. In Monday’s case, the question was who qualifies as a supervisor.”

Plaintiff claimed that a “supervisor” is a broad term — a person with authority to control someone’s workplace activities and evaluate performance. The lower appeals court in this case took a narrower view of the definition of “supervisor” — a person with the power to hire, fire, promote, transfer or discipline workers. Plaintiff appealed to the Supreme Court.

The Supreme Court adopted the lower court’s definition, calling plaintiff’s definition of supervisor “nebulous.” The majority ruled, “The ability to direct another employee’s tasks is simply not sufficient. … Employees with such powers are certainly capable of creating intolerable work environments, but so are many other co-workers.” The court held that, “An employer can be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim.”

Justice Ginsberg read her dissent in open court and stated that “The court embraces a position that relieves scores of employers of responsibility for behavior of the supervisors they employ. … Inevitably, the court’s definition of supervisor will hinder efforts to stamp out discrimination in the workplace.” She said that the decision “ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation’s workplaces.”

“Today’s decisions are deeply troubling and undermine decades of work to advance equal opportunity and end workplace harassment,” said Nancy Zirkin of The Leadership Conference on Civil and Human Rights in a statement.

On the other hand, reaction from pro-business groups and attorneys was one of relief and satisfaction. Commentators said of the new definition of “supervisor” for Title VII purposes that a “bright-line” was now established which would “streamline” lawsuit and provide “clarity” on the issue. It will weed out claims at the summary judgment stage where an employer never intended the alleged harasser to have authority to bind the employer with his/her acts.

University of Texas v. Nassar

In the second case the plaintiff alleged that he was not hired by the university’s hospital because his supervisor at the affiliated medical school where he taught retaliated against him for previously complaining of religious and ethnic discrimination. The court refused to apply the standard for demonstrating discrimination related to the underlying charges of discrimination based upon, for example, race, sex, and religion (that plaintiff may show that discrimination was just one of the employer’s motives for the employer’s adverse employment action). Instead, the court looked to a decision that it handed down construing the Age Discrimination Act and held that “Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.”

This new “but-for” test substantially limits employees in their ability to prevail on retaliation claims, which Justice Ginsburg, again a dissenting voice noted, ”Both decisions dilute the strength of Title VII [of the Civil Rights Act of 1964] in ways Congress could not have intended. … Today, the ball again lies in Congress’ court to correct this Court’s wayward interpretations of Title VII.”

Business interests, however, were again satisfied with the result, which they claim will limit the ability of an employee to file a charge of discrimination to avoid or “immunize himself” from an anticipated and otherwise well-deserved adverse employment action, such as performance deficiencies.”