Raising the Bar on Employer Liability for Harassment and Retaliation

Labor & Employment Alert

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On June 24, the Supreme Court issued two new opinions in favor of employers, both five-to-four decisions that narrowly construe the scope of Title VII’s retaliation and employer liability rules and significantly raise the bar on employees suing their employers for harassment and retaliation.

I. University of Texas S.W. Medical Center v. Nassar

In Nassar, the plaintiff employee did not get along with his supervisor at a university-affiliated medical center, whom he accused of racial and religious discrimination. Naiel Nassar alleged that he arranged to resign from his position and become employed directly by the medical center rather than the university, resulting in a change of supervisors. But after he complained about the discrimination, Nassar claimed, the medical center denied him permanent employment. The employer argued that regardless of any retaliatory intent, it would have failed to hire Nassar for legitimate reasons. The Supreme Court considered what standard of proof applies in such cases—that retaliation is simply a “motivating factor” in the employment decision or instead the more stringent standard, that Nassar would have gotten the job “but for” the retaliatory intent?

Justice Kennedy’s opinion for the court explained that ordinary tort law applies the “but for” causation standard, and the court will assume that Congress intended courts to apply this standard unless Title VII indicates a different intent. In an opinion issued before Title VII was enacted, Price Waterhouse v. Hopkins, the Court steered away from the traditional “but for” causation standard and held that a plaintiff simply had to prove that an employee’s race, sex, or religion was a “motivating factor” in the decision to trigger liability for retaliation. Title VII then partly codified Price Waterhouse, articulating that a plaintiff establishes liability for discrimination by proving that “race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” In Nassar, the Court considered whether this provision applies not only to claims of status-based discrimination but also extends to retaliation claims. The Court held that Title VII’s language in its retaliation provision indicated no intent to depart from the “but for” causation standard.

In her dissent, Justice Ginsburg emphasized the “symbiotic relationship” between discrimination and retaliation and also argued that the “but for” causation standard requires juries to unnecessarily consider dueling causation standards in Title VII cases, a task “virtually certain to sow confusion.”

II. Vance v. Ball State University

In Vance, the plaintiff employee sued for race-based discrimination. Maetta Vance alleged that one employee whom she perceived as a supervisor, Bill Kimes, treated other workers more favorably. She alleged that another worker, Saundra Davis, whom Vance also regarded as a supervisor, allegedly slapped her, used racial epithets, and physically assaulted her. After Vance complained, her employer warned other workers and investigated what had happened. The management made clear to the department that racial harassment would not be tolerated. The Seventh Circuit concluded that 1) Kimes was a supervisor but his treatment of Vance was not racial in character, and 2) Davis was not a supervisor because she had no formal authority to take explicit job action. Accordingly, the Seventh Circuit held that Vance had failed to establish a claim of racial bias creating a hostile work environment under Title VII. The Supreme Court considered who constituted a supervisor for purposes of employer vicarious liability under Title VII.

Justice Alito wrote for the majority, holding that a “supervisor” is someone whom “the employer has empowered…to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” Although Vance restricts employer liability by narrowing who constitutes a supervisor, an employer can still be held liable for being “negligent in failing to prevent harassment from taking place” where it involves harassment on the part of non-supervisors.

Justice Ginsburg once again wrote the dissent, opining that the majority “ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation’s workplaces.” As Kevin Russell wrote in an article for SCOTUSblog, both decisions “are undoubtedly wins for employers.…Both decisions will make it harder for plaintiffs to prove their cases, but perhaps more importantly, will provide judges greater authority to prevent the case from getting to a jury in the first place. That both reduces the cost and complexity of fighting many discrimination claims, and also reduces the settlement value of many others.”