Lawyers for both employers and employees took careful note of two recent decisions from the United States Supreme Court that make discrimination and retaliation claims more difficult for employees to prove. The impact of these decisions will depend on how the lower courts apply the rulings.
Title VII Discrimination: "Supervisor" Narrowly Defined
In Vance v. Ball State University, the Court answered the question of who qualifies as a "supervisor" when an employee makes a claim of workplace harassment. This question is important because the law presumes that employers are liable for discrimination when the harasser is a supervisor.
TIP: Review job descriptions to ensure they accurately reflect whether an employee has authority to hire, fire, or take other tangible employment actions. As always, if an employee complains of discrimination, exercise caution with any subsequent personnel decisions that would adversely affect him.
Helpful to employers, the Court narrowly defined a "supervisor" as one empowered by the employer to take tangible employment actions, which the Court said include hiring, firing, failing to promote, reassigning employees, and causing significant changes in benefits. The Court contrasted a supervisor with a superior who can merely assign job tasks from time to time. The Court's decision has made it somewhat more difficult for plaintiffs to prove discrimination claims, which helps reduce legal risks from claims based on actions of lower-level supervisors who have no real authority to hire or fire.
Retaliation: "But-for" Cause of Adverse Action
In University of Texas Southwestern Medical Center v. Nassar, the Court clarified the proof an employee must offer to make a successful retaliation claim under Title VII. Now, an employee must show that the protected activity in which she engaged (e.g., filing a charge with the EEOC, complaining of discrimination) was the "but for" cause of an adverse action taken by the employer. Under this new, higher standard, it is not enough for an employee to show that her protected activity was merely "a" cause or reason leading to her adverse employment action; instead, she must show that the adverse employment action would not have occurred "but for" her complaint—had she not complained, she would not have been fired.
In practical terms, these two cases make it slightly more difficult for employees to prove discrimination (if they are suing over the actions of a non-supervisor) and retaliation (if there are multiple reasons for the adverse action). Even if these rulings do not reduce the number of claims filed, they may lower the settlement value of certain lawsuits and will provide employers with additional defenses.