- Good News From Washington: Supreme Court Tightens Standards For Successful Harassment And Retaliation Claims Under Title VII
- July 24, 2013
- Law Firm: Capehart & Scatchard, P.A. - Mount Laurel Office
The 2012-13 term of the United States Supreme Court recently ended this past June. During this term, amongst its many case decisions, the Court handed down two significant rulings making it harder for employees to successfully claim workplace harassment and retaliation under the federal Civil Rights Act. These decisions hopefully signal the start of a positive trend for employers that will result in closer court scrutiny of claims filed by disgruntled employees under Title VII of the Civil Rights Act.
As most employers no doubt know, Title VII bars discrimination and harassment in employment, and likewise safeguards employees who exercise their rights thereunder from being the victims of retaliation. These prohibitions apply equally to both private and public entity employers.
The first decision in which the Court tightened the standards for claiming discrimination/harassment under Title VII was Vance v. Ball State (decided June 24, 2013). In Vance, the Court was asked to determine what it means to be a "supervisor" in cases in which an employee asserts a Title VII claim for workplace harassment. The Court needed to resolve this issue because it was left undecided in two earlier seminal decisions that laid out the legal standard for establishing an employer's liability for workplace harassment under Title VII. These cases, decided back in 1998, Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998), are regularly utilized by federal courts in determining under what circumstances a plaintiff can make out a workplace harassment claim under Title VII.
The significance of which employee qualifies as a "supervisor" arises from the dual standard adopted by the Court in Ellerth and Faragher for determining under what circumstances an employer is liable for the harassing activities of its employees. If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling the working conditions of the victim. If, however, the harasser is a "supervisor" under the foregoing cases, starkly different rules apply. Where the supervisor's harassment results in a tangible employment action to the employee, the employer is strictly liable. However, where no tangible employment action is suffered by the victim, the employer may avoid liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior, and (2) the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided.
Ever since these cases were decided, lower federal courts have utilized conflicting standards for determining who a "supervisor" is for purposes of applying this foregoing analysis. Some lower courts concluded that, for purposes of vicarious liability under Title VII, a worker was a "supervisor" only if that person was empowered by the employer to take tangible employment actions against the victim, such as, hiring, firing, demotions, promotions, etc. Alternatively, other courts, as well as the Equal Employment Opportunity Commission ("EEOC"), opted instead for a much broader definition, declaring that a "supervisor" was anyone who exercised any type of control over the harassment victim's day to day work activities.
In Vance, the Supreme Court determined that the most workable standard for deciding when a "supervisor" exists for purposes of conducting the vicarious liability analysis of Ellerth and Faragher is the one which focused on assessing the co-workers ability to cause tangible employment actions and be in a position to make significant changes in an employee's work status. It believed that this standard properly recognized that the defining standard that often distinguishes a worker from a supervisor is the latter's authority to take tangible employment actions that affect other employees. Applying this standard to the case before it, the Court in Vance concluded that since the harassing co-worker there was not empowered by the employer to take tangible employment actions against the victim, and only exercised minimal oversight over the victim's day to day workplace activities, the co-worker could not be a "supervisor" and there could be no strict employer liability under the Ellerth/Faragher standard.
In much the same vein as Vance, the decision in University of Texas Southwestern Medical Center v. Nassar (also decided on June 24, 2013) reflects the Court's application of an extremely narrow standard to control potential workplace claims under Title VII. In Nassar, a physician attempted to show that his employer retaliated against him for complaining of religion and ethnic heritage discrimination under Title VII. He claimed that his primary supervisor manifested such a bias by subjecting his billing practices and productivity to undeserved scrutiny, and by also allegedly making comments against his Middle Eastern heritage, specifically that "Middle Easterners are lazy." Nassar also allegedly complained about this discriminatory treatment to another university supervisor as well. Although Nassar eventually obtained a promotion, he continued to believe that he was the victim of wrongful discrimination.
As an employee of the medical center, Nassar was also a member of the university's faculty. Because of the discriminatory treatment that he received at the hands of his university supervisor, Nassar wanted to continue working at the medical center without also being a member of the university faculty. When it appeared likely that such an arrangement would be consummated, Nassar sent a letter to his university supervisor and others at the university wherein he stated that the reason for his departure from the university was harassment stemming from "religious, racial and cultural bias against Arabs and Muslims." Shortly thereafter, the medical center withdrew its offer, stating that it would be inconsistent with its normal affiliation agreement with the university.
Eventually, Nassar filed a lawsuit alleging two violations of Title VII. The first was a status-based discrimination claim, alleging that his supervisor's racially and religiously motivated harassment had resulted in his constructive discharge from the university. The second claim was that his university supervisor's efforts to prevent the medical center from just hiring him there were in retaliation for complaining about workplace harassment.
The issue that reached the Supreme Court for decision related to what a plaintiff must prove to establish a claim of workplace retaliation under Title VII. There were two standards from which the court could choose. The first would require only a showing that retaliation was "a motivating factor" amongst others for the adverse employment action. The second was a more demanding standard: that a Title VII complainant show that the wrongful employment action occurred "but for" the claimed retaliation. Undertaking a vigorous analysis of the statutory language of both the original Civil Rights Act of 1964, and its later amendment by the Civil Rights Act of 1991, the Court ultimately decided that the appropriate standard applicable to retaliation claims required a "but for" analysis. The Court believed that this proof standard was more consistent with the structure of the Title VII statute, as well as the underlying purpose for which the retaliation protections of Title VII were adopted. Therefore, moving forward, where evidence of "but for" causation is lacking, a retaliation claim under Title VII will fail.
So what do these cases mean for employers? For one thing, our state courts often look at federal decisional law for guidance while interpreting New Jersey's version of Title VII, i.e. the Law Against Discrimination ("LAD"), so we could see these decisions influencing how state judges decide similar issues under LAD. Moreover, while these cases will make it harder for employees to bring harassment and retaliation claims under Title VII, employers are still wise to rigorously prevent such wrongful actions from occurring in their workplace in the first place. Thus, in light of the decision in Vance, it is recommended that employers undertake immediate training of all employees who have the ability to take tangible employment actions against coworkers to remind them of your company's strict policies against any type of wrongful workplace harassment. Similarly, and just as importantly, in light of the Nassar decision, employers should remind all members of your workforce about the dangers of workplace retaliation, and reaffirm your company's strong commitment to ensuring that persons who engage in protected activity under federal (and state) civil rights laws will not be subjected to wrongful retaliation.