July 5, 2013 14:49 Age: 293 days

Shanor Finds Rulings on Harassment, Retaliation, “Clear Victories” for Employers

by Charles A. Shanor

On June 24, 2013, the Supreme Court handed down two 5-4 decisions in employment discrimination cases. The cases dealt with harassment and retaliation, two of the most active areas for charges and litigation under Title VII today.

Vance v. Ball State University

The harassment case, Vance v. Ball State University, involved a claim by a cafeteria worker that she had been racially harassed. Title VII racial and sexual harassment law makes employers liable for “negligence” when an employee harasses a co-employee, but “vicariously” liable for harassment by its supervisors. Vicarious liability is automatic, because the employer “clothed” the supervisor with authority over the victim. However, the employer has an affirmative defense when (1) it establishes and implements policies for reporting and punishing harassment and (2) the alleged victim fails to use these policies.

In Vance, the alleged harasser had oversight over some daily assignments of the plaintiff but had no authority to hire, fire, or discipline Ms. Vance. Was this person a supervisor or a co-employee? Extrapolating from an intricate web of its prior decisions, a majority of the Court held that supervisors are only those having authority to hire, fire, or discipline other employees. This “bright line” rule was the better construction of the amount of supervisory authority needed to trigger vicarious liability, said the Court. Ball State, which had dealt reasonably with Vance’s complaints as they arose over a time, had not acted negligently and was therefore not liable under Title VII for racial harassment.

University of Texas Southwest Medical Center v. Hassan

Once a rare afterthought in Title VII cases, retaliation claims are now regularly asserted in a large portion of all employment discrimination charges and suits. The Supreme Court’s 5-4 decision in University of Texas Southwest Medical Center v. Hassan narrowed the sweep of such claims under Title VII. The Court held that an employee must prove that “but for” opposition to unlawful employment practices or participation in processes under Title VII, the employee would not have been subjected to adverse action by the employer. This decision, reached through a combination of textual and structural constructions of the 1991 Civil Rights Act, also found support, said the majority in the background principle that “but for’ causation, as in tort law, will be required unless Congress clearly indicates otherwise.

The Court’s dissenters would have allowed plaintiffs to prevail who could show that retaliation was one reason among others for the adverse action, as is true in race, color, sex, national origin, or religion Title VII cases after the 1991 legislation.

Both Vance and Southwest Medical Center are clear victories for employers, who will fear harassment and retaliation claims less after than they did before these decisions.

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