CaliforniaIn June 2013, the United States Supreme Court decided two cases that favored employers sued in retaliation and unlawful harassment cases brought under federal law. In the first decision, the Court held that a "mixed motive" retaliation claim is subject to a "but for" burden of proof. In the second decision, the Court limited the scope of who is a supervisor for purposes of imposing strict liability upon an employer for unlawful harassment. The question left open by these decisions is whether they will be applied to employment disputes involving California law. Depending on how California courts interpret these federal decisions, it is likely that they will not change California employer liability in retaliation and unlawful harassment claims brought under California employment laws.

Retaliation Burden of Proof

In University of Texas Southwestern Medical Center v. Nassar, the plaintiff was a professor at a medical school and a physician at a hospital affiliated with the medical school. He claimed that his immediate supervisor harassed him based on his Middle Eastern descent and Muslim religion. The plaintiff claimed he quit his post at the medical school because he could no longer tolerate the harassment. However, he sought to retain his job at the hospital. In the meantime, the plaintiff complained to his supervisor's boss about the harassment. Soon after, the hospital withdrew its employment offer to the plaintiff, citing a hospital policy requiring it to fill its positions with the medical school's faculty. The plaintiff sued, alleging the hospital retaliated against him for complaining about the harassment. The U.S. Supreme Court held that when a plaintiff claims retaliation in an action where there is more than one motive identified for an employer's adverse action against an employee -- a legitimate motive (e.g. non-compliance with an established employer policy) and an illegitimate motive (retaliation), the plaintiff's retaliation claim will fail unless the employee shows that the employer would not have taken the adverse employment action "but for" its intent to retaliate.

The U.S. Supreme Court has articulated different burdens of proof under the federal Civil Rights Act for a retaliation claim as compared to a discrimination claim based on a protected status (e.g. race, color, religion, sex or national origin). In a discrimination claim where there is more than one motive identified for an employer's adverse action against an employee -- a legitimate motive and an illegitimate motive (unlawful discrimination), under federal law, the plaintiff need only show that unlawful discrimination was a "motivating factor" in an employer's adverse action. Thus, unlike in a retaliation claim, an employer's proof that other factors also motivated the adverse action will not defeat a discrimination claim.

It is uncertain how, if at all, the U.S. Supreme Court's ruling in Nassar will impact retaliation claims brought under the California Fair Employment and Housing Act ("FEHA"). However, in February of this year, the California Supreme Court addressed the burden of proof in a discrimination claim where there were multiple motives identified for the plaintiff's termination that were both legitimate (employee's performance deficiencies) and illegitimate (pregnancy discrimination). The California Supreme Court analyzed the FEHA anti-discrimination law that is almost identical to the federal anti-retaliation law that the U.S. Supreme Court in Nassar held was subject to the "but for" burden of proof.

The California Supreme Court reached the opposite conclusion, holding that the FEHA provision was subject to the more lenient "motivating factor" burden of proof. The anti-retaliation provision of the FEHA contains the same language as FEHA's anti-discrimination provision. Thus, a California state court will likely decline to apply the higher "but for" standard that the U.S. Supreme Court adopted for federal retaliation claims, and instead follow the California Supreme Court's more lenient "motivating factor" standard which is more favorable to employees.

Who Qualifies as a "Supervisor" for Purposes of an Employer's Strict Liability for Unlawful Harassment

In Vance v. Ball State University, plaintiff worked in a university cafeteria as a catering assistant. She claims that she was subjected to hostile work environment racial harassment by a "catering specialist" at the university. It was undisputed that the accused harasser did not have the power to hire, fire, demote, promote, transfer or discipline the plaintiff. The plaintiff, nevertheless, argued that the accused harasser qualified as a "supervisor," and therefore the university was strictly liable for the acts of racial harassment.

The U.S. Supreme Court disagreed, finding that the accused harasser did not fit the definition of "supervisor" within the meaning of federal law, and therefore the university was not subject to strict liability for the harassment. Rather, the accused harasser was merely the plaintiff's co-worker, and therefore, the university could only be liable for the harassment if it was negligent in controlling the plaintiff's working conditions.

In reaching this decision, the U.S. Supreme Court held that under federal law, in order to qualify as a "supervisor" for purposes of strict liability for unlawful harassment, the employee must be authorized to take tangible employment actions against the plaintiff, i.e. to "effect significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." The Court held that an employee who simply directs another employee's tasks will not qualify as a "supervisor."

We do not yet know if this decision will have any impact on harassment cases filed in California under state law. Unlike federal law under which Vance was decided, the FEHA specifically defines the term "supervisor" to include not only employees who are empowered to take tangible employment actions against others; but also to include employees who merely direct other employees or recommend tangible employment action. Using the FEHA definition, California courts have held that a broad range of employees are "supervisors" including employees who do nothing more than direct other employees and/or make recommendations regarding performance reviews, terminations, hiring, promotions, etc.

States including California are given broad discretion to enforce their own employment laws that give employees greater protections than federal laws addressing the same subject matter. As such, it is likely that neither the Nassar nor the Vance decisions will change California's application of the burden of proof in a retaliation claim or the definition of "supervisor" in a workplace harassment claim.

Mary Watson FisherFeel free to contact the author with any questions:  

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