The United States Supreme Court may have tightened the standards for employer liability for "supervisor" harassment and "retaliation," but this does not mean that employers should relax.
Perhaps lost in the shadow of the Fisher v. University of Texas at Austin et al. affirmative action case, the Voting Rights decision (Shelby County v. Holder), DOMA (United States v. Windsor) and the Prop 8 rulings (Hollingsworth et al. v. Perry et al.), the United States Supreme Court decided two cases on June 24, 2013, that clarified the legal analysis that will apply in Title VII cases.
In University of Texas Southwestern Medical Center v. Nassar, the Court held that Title VII requires that a claimant alleging retaliation must demonstrate that his or her protected activity was the determining factor that resulted in an adverse employment action. Retaliation now must be the "but-for cause" of the employer's action.
In addition, in Vance v. Ball State University, the Court defined a "supervisor" for purposes of imposing vicarious liability for workplace harassment upon the employer. The Court held that for Title VII claims, a "supervisor" is an employee who has authority to affect the terms and conditions of employment—such as making hiring, firing and pay decisions.
While these two cases, taken together, may benefit employers in certain circumstances, as a practical matter employers may still face liability for management actions that violate Title VII. Thus, employers should continue to be diligent in monitoring employment practices. Our labor and employment attorneys are available to counsel employers regarding their current policies and practices to address the issues decided in these two cases. Further, we can assist with training managers on these matters to help reduce the exposure for liability to employers.
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