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Bar News - November 15, 2013

Debating Recent US Supreme Court Employment Law Cases


Debra Weiss Ford

Nancy Richards-Stower
Editor’s note: This is 12th and final Bar News debate between employment lawyers Nancy Richards-Stower (employee advocate) and Debra Weiss Ford (employer advocate). Here they discuss the United States Supreme Court’s decisions in University of Texas Southwestern Medical Center v. Nassar, which imposed a “but for” standard for proving retaliation cases under Title VII, and Vance v. Ball State University, holding that a “supervisor” under Title VII is limited to one who can hire and fire.

Deb: Well, Nance, the employers won two big ones this term! As you predicted, the United States Supreme Court in University of Texas Southwestern Medical Center v. Nassar imposed the more restrictive standard of “but for” causation in retaliation cases under Title VII, killing mixed-motive retaliation cases under Title VII.

Nancy: I hate it when right means right wing. And now, “because of” means “solely” in retaliation cases.

Deb: Don’t go political ...

Nancy: Remember Bush v. Gore!

Deb: Back to employment law, Nancy.

Nancy: Okay. Yes, the Supremes flipped the definition of “because of,” with the result that it will be harder to prove retaliation under Title VII. Nassar ignores the reasoning in Price Waterhouse v. Hopkins and Congressional intent. Price Waterhouse noted that Congress specifically rejected an amendment to Title VII which would have placed the word “soley” in front of the language “because of,” meaning that neither discrimination nor retaliation need be the sole motivator for the decision being litigated.

Deb: However, when Congress amended Title VII in the Civil Rights Act of 1991 (CRA ‘91) adding jury trials, compensatory and punitive damages, it codified an optional mixed-motive approach for discrimination cases, but didn’t include a reference for retaliation cases.

Nancy: Still, CRA ‘91 did not change the original words “because of,” which continue to define liability in 42 U.S.C. SEC. 2000e-2, which states that, “It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin...” Nor did the CRA ‘91 change Title VII’s retaliation language, which continues to prohibit employers from taking adverse actions, stating that “because [the employee] has opposed any practice made an unlawful employment practice” by Title VII or “because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII.

Deb: Yes, Nassar precludes a mixed-motive retaliation case by defining “because” as “solely,” but you argue that plaintiffs shouldn’t bring mixed-motive cases under Title VII anyway (because of the limited relief when the employer proves it would have taken the same action anyway).

Nancy: Bluntly? Because courts and practitioners so often conflate and otherwise confuse “mixed motive cases” with “conflicting evidence of intent” cases. It is in that fog that more cases will be shoved off the summary judgment cliff.

Deb: Well, let’s move on to Vance v. Ball State University. Finally, some clear guidance as to who is “a supervisor.” The narrower the definition, the better for employers. Under the Supreme Court’s 1998 duo, Ellerth and Faragher, an employer is vicariously liable for sexual harassment by its supervisors when the harassment results in a tangible job action (hiring, firing, demotion, transfer, etc.). Non-supervisory harassment cases must be proved by showing that the employer was negligent (that it knew or should have known of the harassment and failed to take prompt action to address it.) Thus, “who is a supervisor” determines the proof required.

Nancy: Vance didn’t change federal law in our First Circuit, which had defined supervisory status as in Vance. Being called “supervisor” hasn’t been enough for years. The seventh and eighth circuits agreed. But, before Vance, the second, fourth and ninth circuits defined supervisors more broadly, as those with the authority to direct and oversee their harassment victims’ daily work – just like the EEOC guidance rejected by Vance.

However, “who is a supervisor?” under New Hampshire state law remains the broader category, not affected by Vance, because under RSA 354-A:2 (XV)(b), Title VII is a floor, not a ceiling, of protection.

Deb: Remember, even unsuccessful actions to prevent or stop co-employee harassment do not bestow employer liability, unless the employer’s actions, when taken, were not reasonably calculated to be effective.

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