Supreme Court Revisits Title VII

by Eileen Lohmann, Online Editor

On June 24, the United States Supreme Court handed down rulings in two cases involving employment discrimination claims under Title VII of the Civil Rights Act of 1964, each of which resulted in a five-to-four decision for the employer.

First, in University of Texas Southwestern Medical Center v. Nassar, a University faculty member was offered a physician position at an affiliated Hospital in accordance with its agreement to hire University faculty members to fill staff physician posts.  After he left the University faculty because his supervisor had allegedly harassed him on account of his religion and ethnic heritage, the Hospital withdrew his job offer and he brought a retaliation claim under Title VII.  The Hospital argued that it rescinded the offer not because of his complaints of harassment, but because he was no longer a member of the University’s faculty and extending him an offer of permanent employment would have violated the Hospital’s agreement with the University.

The Court held for the Hospital and in an opinion written by Justice Kennedy, concluded that to prevail on a retaliation claim under Title VII, a plaintiff must prove that “but for” his or her protected activity, the employer would not have taken the alleged adverse action against the plaintiff.  Merely proving that the protected activity was one motivating factor will not suffice.  The Court stated that the principle it articulated in Price Waterhouse v. Hopkins in 1989, that “[a]n employee who alleges status-based discrimination under Title VII need not show that the causal link between injury and wrong is so close that the injury would not have occurred but for the act,” does not apply to retaliation claims.  The Court found its 2009 holding in Gross v. FBL Financial Services, Inc., that a retaliation claim under the Age Discrimination in Employment Act of 1967 (ADEA) “requires proof that the prohibited criterion was the but-for cause of the prohibited conduct,” more instructive.  The Court reasoned that in 1991, Congress amended the section of Title VII that prohibits status-based discrimination to allow “mixed-motive” claims, but did not amend the separate antiretaliation provision that “require[d] proof that the desire to retaliate was the but-for cause of the challenged employment action.”  The Court also raised its concern that lessening the causation standard would likely increase the already-rising number of retaliation claims.

Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, dissented, denouncing the decision in this case as one in which “the Court has seized on a provision . . . adopted by Congress as part of an endeavor to strengthen Title VII, and turned it into a measure reducing the force of the ban on retaliation.”  Justice Ginsburg argued that “a strict but-for test is particularly ill suited to employment discrimination cases,” and foreshadowed the result to be announced in the following case, calling both decisions “misguided” and suggesting that they “should prompt yet another Civil Rights Restoration Act.”  The opinion in Nassar can be found here.  The Scotusblog page for the case can be found here.

In the second case, Vance v. Ball State University, the Court answered a question left open by two cases it decided in 1998, Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton, which both distinguished between discrimination by a “supervisor” and a coworker, but did not specifically define the term “supervisor.”  In an opinion written by Justice Alito, the Court held in Vance that “an employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer 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.’ ”

The Court reasoned that because “the term ‘supervisor’ has varying meanings both in colloquial usage and in the law,” and Title VII contains no reference to the term, it must define it in the context of Ellerth and Faragher.  The Court noted that in Ellerth, the alleged harasser was clearly a supervisor because he hired the victim and promoted her.  In Vance, the petitioner had alleged that her supervisor harassed and discriminated against her on the basis of her race, which, under Ellerth and Faragher, would render her employer vicariously liable.  Though the job description of the alleged harasser contains supervisory duties, the Court found no evidence in the record to indicate that she actually supervised the petitioner’s work on a daily basis.

Justice Ginsburg dissented, again joined by Justices Breyer, Sotomayor, and Kagan.  Justice Ginsburg reasoned that this decision wrongfully “strikes from the supervisory category employees who control the day-to-day schedules and assignments of others, confining the category of those formally empowered to take tangible employment actions,” and argued that the Court should have applied the Equal Employment Opportunity Commission’s (EEOC) definition of a supervisor as “any employee with ‘authority to undertake or recommend tangible employment decisions’ or with ‘authority to direct [another] employee’s daily work activities.’”  Justice Ginsburg again called on Congress to “correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.”  The opinion in Vance can be found here.  The Scotusblog page for the case can be found here.

These pro-employer decisions will undoubtedly change the way future plaintiffs and their lawyers will approach claims under Title VII.  Kevin Russell, writing for Scotusblog, suggested that these rulings “will make it harder for plaintiffs to prove their cases, but perhaps more importantly, will provide judges greater authority to prevent the case from getting to a jury in the first place.”  His article can be found here.