Virginia Employment Law Blog

Yesterday, the Supreme Court issued two important decisions that narrowed the scope of Title VII.  In the first case, University of Texas Southwestern Medical Center v. Nassar, the Court held retaliation claims to a higher standard of proof, while in Vance v. Ball State University, the Court narrowly described who qualifies as a supervisor.

In Nassar, the plaintiff claimed that he was denied permanent employment after complaining about discrimination by his supervisor.  The Court had to consider whether the plaintiff had to prove retaliation was only a “motivating factor” in the employer’s decision not to hire him, or whether he had to prove it was the “but for” cause.  The Court noted that the “but for” standard is the rule in tort cases, and that Congress is assumed to have chosen that standard unless it says otherwise.  After mentioning some history regarding Title VII causation issues, the Court held that for retaliation claims the more relaxed “motivating factor” test used in status-based discrimination claims did not apply.  The Court noted that the 1991 amendment to Title VII did not expand the more relaxed causation standard to all claims, and that the amendment explicitly differentiated between status-based and retaliation claims, with the latter still utilizing the traditional but-for standard.  The Court was especially concerned that given the large number of retaliation claims that are filed every year, a more relaxed causation standard might encourage more unfounded suits.  Finally, the Court also declined to follow the EEOC’s interpretation.  The dissent essentially argued that retaliation itself is form of discrimination, and that it makes no sense to have separate standards that may encourage retaliatory behavior in the workplace.

In Vance, the Court narrowly defined who counts as a supervisor for the purposes of Title VII liability.  The Court held that a supervisor is someone with the power to “take tangible employment action” against the victim.  Directing everyday activities is not enough.  To give a brief overview, the Court had previously held that it is easier to prevail against an employer in a harassment claim where the harassing employee is a supervisor, because the employee has the option of showing the harassment ended in a tangible employment action or that the employer did not exercise reasonable care in preventing the harassing behavior.  The Court resolved a lower court conflict by stating that a supervisor is someone who has the power to take direct tangible employment action, based on a concept of sharply differentiating between co-workers and supervisors.  The Court claimed this rule would be easier to apply, and might allow some cases to be resolved before trial.  The dissent argued that narrowly defining supervisor as the Court did would under-protect workers who were harassed by those with control over their daily employment situation.