In a pair of 5-4 decisions this past June, the Supreme Court limited the definition of supervisor and increased the standard of causation for retaliation under Title VII of the Civil Rights Act.1 These decisions will make it easier for employers to defend against discrimination and retaliation claims. They may also limit the effectiveness of Title VII by restricting when the employer has strict liability for supervisor harassment and decreasing reports of harassment because employees fear retaliation, claims which must now be proved with but-for causation. This article will examine the rulings and discuss the impact on Civil Rights Act claims.
An employer is strictly liable for a supervisor’s harassment of the victim, but an employer is liable for co-worker harassment only if the employer was negligent in controlling conditions of the workplace.2 An employer can escape liability for supervisor harassment if there was no tangible employment action taken against the victim and the employer can establish the affirmative defense that “1) the employer exercised reasonable care to prevent and correct any harassing behavior and 2) the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.”3 The issue before the court in Vance v. Ball State University was what qualifies a person to be a supervisor so that the employer has strict liability.4
The Supreme Court adopted the rulings of appellate courts that limited “supervisor” to someone who has the power to “take tangible employment actions against the victim.”5 The Equal Employment Opportunity Commission (EEOC) defined a supervisor more broadly as a person who was “authorized ‘to undertake or recommend tangible employment decisions affecting the employee’” or a person who was “authorized ‘to direct the employee’s daily work activities.’”6 The Court rejected the EEOC’s guidance because “supervisor status would very often be murky” and would confuse juries. The definition adopted in this case includes the ability “to hire, fire, demote, promote, transfer, or discipline the victim” and the ability to “cause ‘direct economic harm’ by taking a tangible employment action.”7 The majority reasoned that this bright-line standard would make more sense to a jury because it would be clear whether a person had those powers in order to be a supervisor.8
Justice Ginsburg’s dissent argues that the majority’s approach will leave employees without recourse when they have co-workers who can assign tasks or alter the work environment but do not have the power to take tangible employment actions.9 Ginsburg maintains that the new rule “diminishes the force of Faragher and Ellerth, ignores the conditions under which members of the work force labor, and disserves the objective or Title VII to prevent discrimination.”10 While the majority argues that employees will still be able to prevail by showing the employer was negligent, Ginsburg points out that those claims are harder to win than a claim where the employer has strict liability.11 By limiting who qualifies as a supervisor to those who can hire and fire employees, the majority restricts employer’s strict liability, favoring employers over employees with a narrow definition of supervisor.
Similarly, in University of Texas Southwestern Medical Center v. Nassar the Supreme Court constrained claims for retaliation by requiring the plaintiff to show that “the desire to retaliate was the but-for cause of the challenged employment action.”12 This standard will require “proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”13 Retaliation is banned by 42 USC §2000e-3(a), and the Court decided that retaliation was not included in “any employment practice” language of §2000e-2(m), which is governed by the motivating factor analysis, where a plaintiff can prevail if “discrimination was one of the employer’s motives, even if the employer also had other, lawful motives.”14 The Court reasoned that Congress could have made the motivating factor standard apply to retaliation, but it did not.15 The Court rejected the guidance of the EEOC that retaliation claims were covered by the motivating factor standard under Skidmore deference analysis because it failed “to address the specific provisions of this statutory scheme” and was generic in the discussion of the causation standards.16 The Court asserted that allowing a motivating factor standard would increase frivolous claims.17
Justice Ginsburg dissented, arguing that the “Court has seized on a provision, §2000e-2(m), adopted by Congress as part of an endeavor to strengthen Title VII, and turned it into a measure reducing the force of the ban on retaliation.”18 Ginsburg asserts that “any employment practice” would cover retaliation and that retaliation is a form of status-based discrimination.19 The dissent contends that but-for causation will not mean that a plaintiff can’t prove unlawful retaliation, but it will mean that “proof of a retaliatory motive alone yields no victory for the plaintiff.”20 Ginsburg also points out that “a strict but-for test is particularly ill suited to employment discrimination cases” and it may cause victims of harassment to not report it out of fear of retaliation.21
Together, the Vance and University of Texas Southwestern Medical Center majority opinions narrow the definition of supervisor and limit retaliation claims, making it easier for employers to defeat Title VII claims. However, as Justice Ginsburg’s dissents point out, they may also have the effect of making it harder for employees to successfully sue employers and preventing legitimate claims from being brought because workers fear retaliation, which is now subject to a stronger causation standard. Limiting who qualifies as a supervisor for the purposes of strict liability and limiting retaliation to proof of but-for causation seem to favor employers and reduce the force of Title VII. Congress can overturn the Court’s limitations of Title VII if Congress disagrees with what the Court has done. But with the current Congress and other issues, that will be hard to pass. ■