Earlier this week, the U.S. Supreme Court issued two decisions that will greatly benefit employers in future cases. In University of Texas Southwestern Medical Center v. Nassar, the issue before the court was whether Title VII of the Civil Rights Act of 1964 requires a plaintiff alleging retaliation to prove that a retaliatory motive was the “but-for” cause of an adverse employment action, or simply that the impermissible motive was “a motivating factor.” Relying on the text and structure of the statute, as well as its earlier decision in Gross v. FBL Financial Services, a case under the Age Discrimination in Employment Act, the court held that a plaintiff alleging retaliation under Title VII must prove that an impermissible motive was the “but-for” cause of the employer’s actions. Stated otherwise, a plaintiff must prove the employer would not have taken an adverse employment action but for a retaliatory motive. The decision is a significant victory for employers. As the number of retaliation claims continues to rise, the court’s adoption of a “but-for” causation standard will make it easier for employers to dispose of questionable claims on summary judgment or at trial. Employers should be mindful, however, that the court was sharply divided and the dissent encouraged Congress to overturn the decision.
In addition, the court resolved a conflict among the lower courts, as well as the U.S. Equal Employment Opportunity Commission, over how to define the term “supervisor” for purposes of determining liability under Title VII. The definition of “supervisor” is often critical in cases under Title VII, because an employer can be held strictly liable when a “supervisor” subjects a subordinate employee to a hostile work environment that results in a tangible employment action (e.g., demotion, termination, or a “constructive discharge”). On the other hand, if the harassment is perpetrated by a non-supervisor, such as a co-worker, the employer will only be liable where it was negligent in discovering or remedying the harassment. In Vance v. Ball State University, the court resolving several conflicting definitions of the term “supervisor” by defining it narrowly, as someone who can undertake or effectively recommend tangible employment decisions affecting the victim, i.e., someone who can make 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.” Based on this decision, employers should carefully assess and document who within their company has the actual authority to be a supervisor, and who does not, irrespective of titles. Individuals who are supervisors for Title VII purposes should be provided training that would, among other things, educate supervisors on the potential risks to employers under Title VII for their conduct.
Used with permission by Fisher & Phillips LLP. To contact the authors, both partners at the firm: Darin Mackender, in Denver (
