Common plaintiff strategies for harassment and retaliation litigation ruled out

The Supreme Court redefined how plaintiffs must define an employer's motivation and who is considered a "supervisor"

June 24 was an auspicious day for employers. In a pair of 5-4 decisions, the Supreme Court handed them two significant victories, making harassment and retaliation cases easier to defend.

The high court decided in University of Texas Southwestern Medical Center v. Nassar that employees claiming retaliation must prove the employer’s sole motivation in taking action against them was retaliation for their claim of employer wrongdoing. In Vance v. Ball State University, the majority held that a person must be empowered to take certain employment actions such as hiring and firing to be considered a “supervisor” for purposes of determining employer liability, making it harder for employees to seek legal redress from a business for a co-worker’s harassment. In both cases, the court’s four liberal members filed strongly worded dissents.

In a 5-4 decision, the Supreme Court reversed. The court rejected the argument that the 1991 amendments governed retaliation claims. The “plain language” of the amendment, it said, applied to “only five of the seven prohibited discriminatory actions”—actions based on the employee’s race, color, religion, sex and national origin—but not to retaliation. The court thus required plaintiffs to show that “but for” their complaints about the employer’s wrongdoing, they would not have suffered the adverse employment action.

“If there are legitimate reasons that support termination, it will be difficult for the plaintiff to claim retaliation,” Keating says. “It will be a lot easier for employers to get summary judgment.” That’s good news for inside counsel who are frustrated by being forced into costly settlements with plaintiffs they felt had been justifiably terminated.

Senior Editor

Mary Swanton

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