In two recent Title VII cases, both decided on June 24, 2013, the U.S. Supreme Court made rulings in favor of the employer. The cases were Vance v. Ball State University, and University of Texas Southwestern Medical Center v. Nassar.
In Vance, the question before the Court was – who is a supervisor? This was an important question because in prior rulings based on agency-law principles, the Court held companies can be vicariously liable for discriminatory actions by an employee’s supervisor, whereas a company is far less likely to be liable for discrimination by mere co-workers. These prior holdings, however, did not establish any guidelines for deciding who qualifies as a supervisor, and in subsequent cases the lower courts reached conflicting results. Some courts developed a rule saying that a supervisor was anyone with the authority to give directions and orders to the employee (anyone the employee would have to call “sir” if he or she was in the military). Other courts said a supervisor, for purposes of Title VII liability, was only a person with the authority to hire, fire, or discipline the employee.
The answer? A “supervisor” is only a person with the authority to “hire, fire, demote, promote, transfer, or discipline.” A company can still be held liable for discrimination or harassment by non-supervisors, but not automatically – the employee will have to prove the company knew about it and failed to act.
In Nassar, the question involved an even more technical, but no less important distinction, which was – what legal standard should be used to decide if an employer can be held liable when it retaliates against an employee who stands up for his or her right to be free from illegal discrimination? Again, two differing standards had developed in the lower courts. Some courts held that all retaliation was actionable as long as the employee proves the adverse action in question was taken because of a retaliatory motive (the so-called “motivating factor” standard). Other courts held retaliation was only actionable if the employee could prove “but for” causation – that if the employee had never engaged in the protected conduct (like complaining about a racist boss), the retaliatory and adverse action in question would not have happened. In other words, these latter courts were holding that a little discrimination is OK, and it’s essentially no harm, no-foul where the company may have had a mixed motive for the action in question (for example: employee has complained of discrimination, but she has also been late to work three times, and both factors contribute to the decision to fire her).
The answer? Employer wins again, and the employer can only be held liable if the employee meets the far-more difficult standard of proof. Proving motive (i.e. company fired me because I complained) is always a challenge – but proving what would have happened if things had been different (i.e. if I had not complained, I would not have been fired) is even more difficult.
The takeaway? For decades, rather than letting juries decide if an employer acted with an improper motive, federal courts have created various standards, tests, and rules that judges to use to decide these cases without a jury. (Congress sometimes acts to modify the judicial decisions, but these days Congress probably couldn’t find the rear exit to the building using both chambers). These judge-made rules are hurdles an employment plaintiff must clear to prevail on his or her claim. It’s a judicial minefield, where dozens of correctly-placed steps are necessary for the employee to succeed, but only one wrong step is required to the employer to win.
Happy trails everyone.