|July 8, 2013|
Previously published on July 3, 2013
The U.S. Supreme Court’s term ended recently with its characteristic flare, but overlooked by many are two important cases in the Title VII arena. First, the high court in Vance v. Ball State University defined who is a “supervisor” under Title VII for determining liability in harassment lawsuits. Second, the Court in University of Texas Southwestern Medical Center v. Nassar addressed what standards plaintiffs must satisfy in bringing Title VII retaliation claims. Employers must take note of each decision.
In Title VII harassment claims, the status of the harassing employee as a “co-worker” or “supervisor” is important. If the employee is a “co-worker,” the employer is directly responsible for a co-worker’s unlawful harassment only if the employer was negligent with respect to the offensive behavior. If the employee is a “supervisor,” an employer is liable if the harassment results in tangible employment action; or, if no tangible employment action is taken, an employer may escape liability by establishing an affirmative defense that: (1) the employer exercised reasonable care to prevent and correct harassing behavior, and (2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities that employer provided. In other words, liability against an employer is easier to establish if the harasser is a “supervisor.”
In Vance, the Court defined who is a “supervisor.” Now, an employee is a “supervisor” if he or she is empowered by the employer to take tangible employment actions against the victim. Tangible employment actions require a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.
On the same day, the Supreme Court addressed what standard employees must satisfy to prove Title VII retaliation claims. To establish a claim for retaliation under Title VII, an employee must establish that (1) she engaged in statutorily protected expression (e.g., reporting or otherwise opposing racial harassment), (2) she suffered an adverse, job-related action by her employer, (3) she was performing her job satisfactorily, and (4) she was treated less favorably than a similarly situated employee who did not engage in statutorily protected expression. The Court found in Nassar that employees who allege retaliation must prove that the retaliation would not have occurred in the absence of the employer’s conduct. In so doing, the Court rejected the more lenient standard that an employee must prove only that retaliation was a motivating factor but not the sole reason for the employer’s decision.
Employers should carefully review who possesses supervisory authority under the new definition announced in Vance. Further, when conducting a harassment investigation, the supervisor/co-worker distinction should garner special attention by employers. Finally, employers should consider the new retaliation standard when evaluating whether to discipline problem employees for lawful reasons.