June 25, 2013

Authored by: Matthew R. Wendler

Yesterday, the U.S. Supreme Court issued two decisions arising under Title VII of the Civil Rights Act of 1964-defining “supervisors” narrowly and establishing that the lessened causation standard that applies in mixed-motive cases does not apply in cases brought under the anti-retaliation provision.

Title VII of the Civil Rights Act of 1964 prohibits status-based employer discrimination (i.e., employer discrimination because of race, color, religion, sex, or national origin), including the creation or perpetuation of a discriminatorily hostile work environment. It also prohibits an employer from retaliating against an employee who opposed, complained of, or sought remedies for unlawful workplace discrimination. Yesterday, the U.S. Supreme Court issued two 5-to-4 decisions that concern such Title VII claims: In Vance v. Ball State University, 2013 WL 3155228 (U.S. June 24, 2013), it defined “supervisor,” providing long-needed guidance as to when an employer may be held vicariously liable in a hostile-work-environment case. And in University of Texas Southwestern Medical Center v. Nassar, 2013 WL 3155234 (U.S. June 24, 2013), it established which causation standard applies in retaliation cases.

Vance v. Ball State University

It is well established that an employee who has allegedly been subjected to a discriminatorily hostile work environment (e.g., a working environment that is racially or sexually hostile) may seek to hold an employer liable either directly or vicariously. See, e.g., Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. Boca Raton, 524 U.S. 775 (1998). Indeed, the U.S. Supreme Court has made clear that one may hold an employer directly liable if it has acted negligently-i.e., if the employee proves that the employer knew or should have known about the conduct and failed to stop it; and that one may hold an employer vicariously liable in two situations: first, if the employee proves that a “supervisor” harassed him or her, and that the harassment has culminated in a “tangible employment action”; and, second, even when a supervisor’s harassment does not culminate in a tangible employment action, if the employer is unable to prove that (1) it exercised reasonable care to prevent and promptly correct any harassing behavior and that (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective measured that it provided.

But, until yesterday, the Supreme Court had not made clear what “supervisor” means, raising the important question as to which employees may subject employers to vicarious liability. By defining in Vance v. Ball State University whom “supervisors” are, the Court answered this question, providing long-needed guidance as to vicarious-liability claims in hostile-work-environment cases.

Writing for the majority, Justice Samuel Alito defined supervisors in a manner favoring employers: narrowly. In short, the Court held that supervisors are the employees who have the authority to take tangible employment actions. Indeed, in Vance, the Court “h[e]ld that an employer may 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, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'” In doing so, the Court rejected the broader, “nebulous definition of a ‘supervisor'” that the U.S. Equal Employment Opportunity Commission advocated.

University of Texas Southwestern Medical Center v. Nassar

An employee may establish liability in a status-based discrimination case if he or she proves that the motive to discriminate on a prohibited basis was the employer’s only motive (a single-motive theory of liability) or, alternatively, if it was one of many motives (a mixed-motive theory of liability). See 42 U.S.C. §§ 2000e-2(a), (m). In single-motive cases, the but-for standard of causation applies: one must show that an employer took adverse action “because of” his or her race, color, religion, sex, or national origin. In mixed-motive cases, on the other hand, a lessened causation standard applies: it suffices to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision.

At issue in Nassar was whether the lessened mixed-motive causation standard also applies in retaliation cases. Writing for the majority, Justice Anthony Kennedy held that it does not. To reach this holding, the Supreme Court interpreted the anti-retaliation provision, 42 U.S.C. § 2000e-3(a), which provides as follows:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

Id. (emphasis added). In other words, then, the Court simply had to determine what “because” here means.

To do so, the Court turned to Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), in which it had interpreted “because of” in an Age Discrimination in Employment Act statute to mean “by reason of” or “on account of” and found that there was no “meaningful textual difference between the text in [the] statute [before it] and the one in Gross.” Accordingly, it held, the lessened mixed-motive causation standard does not apply in retaliation cases; “retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.”