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Labor: Supreme Court makes it harder for plaintiffs to prevail in harassment and retaliation suits

New standards clearly define “supervisor” and raise the bar for retaliation claims

On June 24, the Supreme Court issued two decisions that significantly raise the bar for plaintiffs suing their employers for alleged harassment and retaliation.

In harassment claims brought under Title VII of the Civil Rights Act of 1964, the employer can be held strictly liable if the alleged harasser is deemed to be a “supervisor.” If the alleged harasser is not a supervisor but merely a co-worker, however, the employer generally is liable only if it fails to exercise reasonable care to correct and prevent any harassing behavior. As a result, harassment claims often turn on whether the alleged harasser is a supervisor or simply a co-worker.

In Vance v. Ball State University, the Supreme Court held that to qualify as a “supervisor” under Title VII, the alleged harasser must have the power to make a “significant change” in another employee’s employment status, such as through hiring, firing, failing to promote, reassigning with “significantly different responsibilities” or causing a “significant change in benefits.” In so ruling, the court rejected the Equal Employment Opportunity Commission’s (EEOC) broader, easier to satisfy definition of “supervisor” that includes employees who lack the authority to make tangible employment actions, but who direct other workers’ day-to-day activities. Justice Samuel Alito, writing for the court, referred to the EEOC’s definition as a “study in ambiguity” in contrast to the court’s bright-line definition which can be “readily applied” such that an alleged harasser’s supervisory status can be more easily determined prior to trial.

In its second June 24 ruling, the Supreme Court held in University of Texas S.W. Medical Center v. Nassar that an employee claiming that his employer retaliated against him because of protected opposition to discrimination under Title VII must prove the opposition activity was the “but for” cause of the retaliation. In Nassar, the plaintiff alleged that his employer sabotaged his job prospects because he had previously complained about a supervisor’s alleged bias against Arabs and Muslims. The lower court ruled that a plaintiff can prevail if he shows that the retaliation is simply a “motivating factor” for an employer taking an adverse action. Justice Anthony Kennedy, writing for the Supreme Court, rejected the lower court’s reasoning and explained that claimants asserting retaliation under Title VII must now meet the higher “but for” standard, which the Supreme Court previously had applied only to discrimination claims brought under the Age Discrimination in Employment Act.

These recent rulings are certainly important ones for employers. First, employers should be sure their supervisor job descriptions clearly set forth the duties and authority of the positions, as such descriptions will carry significant weight in resolving disputes over whether an alleged harasser meets the definition of “supervisor.” If an employer can successfully prove that the individual is not a supervisor, the employer may be able to defend against a harassment claim by showing it acted reasonably to prevent and correct any problematic conduct. Second, the application of the “but for” standard to retaliation claims is likely to be significant, as most employment lawsuits include claims of both discrimination and retaliation. In many cases the underlying discrimination claim is found to lack merit but the retaliation claim is upheld. The “but for” standard announced in Nassar will now make retaliation claims harder to prove.

Contributing Author

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Gerald Golden

Gerald A. Golden has advised employers for over 35 years on compliance with federal and state employment laws such as the National Labor Relations Act,...

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Contributing Author

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Sonya Rosenberg

Sonya Rosenberg is an attorney in Neal, Gerber & Eisenberg’s Labor & Employment Practice Group. Her experience includes counseling employers through the many...

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