The Rules of Engagement blog is the successor to Huddleston Bolen's Rules of Engagement, employment law newsletter. The blog contains articles and links posted after January 1, 2013. For articles written before January 1, 2013, please click here.

Thursday, November 14, 2013

New Rulings Affect Discrimination Claims


Employers take note. The Supreme Court of the United States recently issued a pair of rulings that will ease employers’ litigation burden for discrimination claims. In Vance v. Ball State University, the Court adopted a narrow definition of supervisor for purposes of Title VII. This narrow definition limits an employer’s liability for the actions of employees that maintain some oversight duties but are not officially supervisors. In University of Texas Southwest Medical Center v. Nassar, the Court adopted a strict standard of proof for retaliation claims. These rulings make plaintiffs’ discrimination claims more difficult to prove, and will allow judges to dismiss cases in early phases of litigation. The reduction in litigation will also lead to reduced settlement value in many cases.

Under Title VII of the 1964 Civil Rights Act, an employer is automatically liable for the discriminatory acts of its supervisors, but is liable for the discriminatory acts of coworkers only if the employer is negligent in responding to the complaint. Prior to Vance, federal courts had adopted two interpretations of supervisor for Title VII liability purposes. One interpretation, followed by three federal circuit courts, defines supervisor as an employee who has authority to control the day-to-day tasks of a coworker. However, the Seventh Circuit applied another interpretation in Vance, followed by three other circuit courts, that defines supervisor as someone with the authority for workplace actions such as hiring, firing, disciplining, and promoting.

In Vance, the plaintiff was an African-American woman who worked for several years in Ball State’s dining services. She lodged several racial discrimination complaints against her employer, but the complaint at issue involved her interactions with a coworker, Saundra Davis. Vance complained that Davis generally took actions to intimidate her because of her race, and later filed suit, alleging that Davis was a supervisor and that BSU was liable for creating a hostile work environment. The Supreme Court of the United States upheld the Seventh Circuit’s definition. The Court explained that to consider an employee as a supervisor, the employee must have authority to take “tangible employment action.”

In Nassar, a doctor of Middle Eastern descent claimed discriminatory retaliation against the University of Texas Southwest Medical Center. According to Nassar, his supervisor, Dr. Beth Levine, scrutinized his work more closely than other doctors, commented that “Middle Easterners are lazy,” and engaged in other questionable activity regarding her supervision of Nassar. Agitated by the hostility, Nassar left his current job for a verbal commitment to a similar job with the private hospital that the University staffed. Nassar wrote a letter to Levine’s supervisor, Dr. Gregory Fitz, to inform him of the reasons for his departure. Fitz, however, became concerned—not about Levine’s actions—but about exonerating Levine for Nassar’s accusations. Later, Fitz protested to the Hospital that Nassar’s hiring violated their staffing contract and the Hospital withdrew its offer to Nassar.

Nassar filed complaints with the Equal Employment Opportunity Commission, and then in federal court. The trial court found for Nassar on the retaliation claim, and the Fifth Circuit affirmed that retaliation claims require the jury to find that the employee’s complaint was a motivating factor in employer’s actions. The Supreme Court, however, overturned this aspect of the ruling. The Court reasoned that Congress includes specific language in the discrimination sections of Title VII that provides for finding merely a motivating factor, but the retaliation section contains no such provision. Since Congress is not explicit on the standard, the Court continued, courts must default to the “but-for” standard that makes the employer liable for a retaliation claim only if the jury finds that the employer would not have acted the way it did had the employee not filed the complaint.

These decisions from the Supreme Court will lessen employer’s litigation burden for discrimination claims. The stricter standard of proof and the narrow definition of supervisor allow judges to deal with cases at an early stage of trial, thereby reducing time spent in litigation and the number of lawsuits filed. However, Justice Ginsburg wrote the dissent for the four justices opposed to the ruling, and called on Congress to negate this decision through a statutory change. Congress has reacted to the Court’s strict interpretation of Title VII in the past, so employers should look out for any Congressional action on the issue.

About the Authors
Ashley French is a partner in Huddleston Bolen’s Charleston, WV office. Mark Conrad is a law clerk at Huddleston Bolen and a second year law student at the West Virginia University College of Law.

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