JUNE 25, 2013

- Employers have fared more favorably in recent court decisions.  Yesterday's decisions by the U.S. Supreme Court are no exception.  These two 5-4 decisions effectively make it more difficult for employees to prove discrimination and retaliation.

In a 5-4 decision in the University of Texas Southwestern Medical Center vs. Naiel Nassar, the Supreme Court held that to recover on a Title VII retaliation claim, plaintiff must show that retaliation was the sole factor leading to the adverse employment action.

Naiel Nassar, a Muslim doctor of Egyptian origin who was on the faculty of University of Texas, made two distinct Title VII claims.  First, he claimed hostile treatment by his hospital superior based on his religion and ethnic heritage, a bias manifested by undeserved scrutiny of his billing practices and productivity, as well as comments that "Middle Easterners are lazy." Dr. Nassar also claimed he was retaliated against for making these discrimination complaints when Dr. Gregory Fitz, Dr. Levine's supervisor, attempted to prevent him from being hired at the University of Texas affiliate hospital without still serving on the faculty.  The jury found for Dr. Nassar on both claims and awarded backpay and compensatory damages of $3.4 million.

The Supreme Court held that in retaliation cases, plaintiff must satisfy a standard of "but-for causation," and "must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer." Because Dr. Nassar alleged discrimination based on retaliation for complaining about race and religion based discrimination, he had to show that retaliation was the sole factor in his job denial.  The Supreme Court rejected Dr. Nassar's argument that on a retaliation claim, plaintiff need only show retaliation was a motivating factor for the adverse employment action.  The Court also noted that subjecting retaliation claims to a stricter proof standard made practical sense, given the "ever-increasing frequency" with which retaliation claims are being filed (more than 31,000 in 2012).  This decision may be critical for employers who have employees who once filed a discrimination case but should be disciplined for performance reasons.

In Vance v. Ball State University, the Supreme Court limited the definition of a "supervisor" to someone with the power to take "tangible employment actions" such as hiring, firing and discipline, rather than someone who merely directs an employee's day-to-day activities.  Maetta Vance, an African-American kitchen employee of Ball State University ("BSU"), sued her employer alleging that fellow employee, Saundra Davis, created a racially hostile work environment.  The district court granted BSU's motion for summary judgment holding that it was not vicariously liable for Davis' actions because Davis was not Vance's supervisor.  The Seventh Circuit affirmed. The Supreme Court agreed holding that a "supervisor," under Title VII, must have the ability to hire, fire, demote, discipline, promote or transfer the victim.
Title VII of the Civil Rights Act of 1964 prohibits employers or their agents from practicing race or gender based discrimination in the workplace.  In 1998, the Supreme Court held that "an employer is directly liable for an employee's unlawful harassment if the employer was negligent with respect to the offensive behavior."  When the harassing employee is the plaintiff's supervisor, however, the employer can be held vicariously liable for the employee's actions.  Since that time there has been a dispute amongst the lower courts and the EEOC as to the definition of a supervisor.  The Supreme Court's ruling definitively resolves this dispute in favor of employers.

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