University of Texas Medical Center v. Nassar and Vance v. Ball State
The extensive coverage of the U.S. Supreme Court’s high profile decisions invalidating the Defense of Marriage Act and gutting the preclearance formula of the Voting Rights Act left the Court’s decisions in two Title VII employment discrimination cases under the radar for many. However, the Court’s decisions in University of Texas Medical Center v. Nassar and Vance v. Ball State will have farreaching implications for the civil and human rights community. As a result of these decisions, employees nationwide will face a heavier burden than ever in seeking legal remedies for workplace discrimination based on race, color, religion, sex and national origin.
University of Texas Medical Center v. Nassar
Title VII of the Civil Rights Act of 1964 is a federal law that prohibits discrimination in employment on the basis of sex, race, color, national origin, and religion. In the Civil Rights Act of 1991, which addressed prior, troubling Supreme Court interpretations of Title VII, Congress established that employers were liable in employment discrimination cases if the plaintiff could show that “race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” In Nassar, the Court elevated the standard of proof for Title VII retaliation claims from the prevailing “motivating factor” standard to the stricter “but-for” causation standard. The more strict “but-for” causation standard requires plaintiffs to prove that the discrimination they suffered was solely in retaliation for speaking out about other discrimination occurring in the workplace. The “but-for” causation standard is much harder to prove than the less strict “motivating factor” standard.
In its June 24 majority opinion written by Justice Anthony Kennedy, the Court held that Congress’ motivating factor standard applied only to discrimination based on race, color, religion, sex, or national origin, and not retaliation. The Court reasoned that because Title VII divided status-based discrimination and retaliation into two different provisions, retaliation was not covered because Congress did not expressly include it in the language of the amendment. In issuing its decision, the Court refused to defer to the long-held interpretation of the Equal Employment Opportunity Commission (EEOC). Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito joined Kennedy’s majority opinion.
In her dissent, Justice Ruth Bader Ginsburg emphasized the need for strong anti-retaliation protections and that a “but-for” causation standard was ill-suited for discrimination cases because it will require juries to determine “what would have happened if the employer’s thoughts and other circumstances had been different.” As a result of what Ginsburg described as the majority’s “zeal to reduce the number of retaliation claims filed against employers,” many workers will now face an uphill battle to find restitution in court under a more onerous “but-for” causation standard. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined Ginsburg’s dissent.
Vance v. Ball State
In Vance, the Court narrowed the definition of “supervisor” for purposes of Title VII liability, which will in turn limit the kinds of employment discrimination cases that can be brought under the law.
Under Title VII, harassment of employees is handled differently depending on whether the harasser is considered a co-worker or a supervisor. In instances where the harassment originates from a supervisor, an employer is automatically liable for any harassment that results in a tangible employment action against the employee. Tangible employment actions are defined as any decisions that result in a significant change in employment status, including hiring, firing, promotion, demotion, transfer, or discipline. Additionally, under Burlington Industries v. Ellerth and Faragher v. Boca Raton, even when the harassment does not involve a tangible employment action, employers can still be liable for a supervisor’s harassment unless they can assert the “Faragher Ellerth” defense that: (a) the employer exercised reasonable care to prevent and correct harassment, and; (b) the employee unreasonably failed to take action to prevent or correct the harassment (such as reporting to human resources or a higher-level supervisor). The basis for this rule is agency law, under which a “master” is responsible for the acts of his “servant.”
By contrast, when harassment originates from the victim’s co-worker, employers are liable only if they are found to have been negligent—that is, if the employer knew or reasonably should have known about harassment and failed to take reasonable remedial action.
In its decision, the Court chose to narrow the scope of an employer’s liability as it considered who was a “supervisor” under Title VII. The majority once again rejected the EEOC’s interpretation; instead, the Court reasoned that because the framework established in the Faragher and Ellerth cases evaluated liability in two steps depending on whether or not the supervisor took a tangible employment action, a supervisor must therefore have the authority to take such tangible employment actions. Alito wrote the opinion for the majority, joined by the same justices as the majority in Nassar, while Ginsburg again wrote the dissent for the same minority.
Ginsburg wrote that the majority’s ruling “disserves the objective of Title VII to prevent discrimination from infecting the Nation’s workplaces” by shielding employers from liability for “sub-level” supervisors who control their subordinates’ day-to-day work activities, but are not authorized take tangible employment actions.
Impact on Victims of Employment Discrimination
The Court’s decisions make it significantly harder for victims alleging retaliation or harassment in the workplace to prevail in court.
Plaintiffs in retaliation suits, such as Naiel Nassar, must now show that their employers would not have taken adverse employment actions “but for” a retaliatory reason. Nassar was employed as both a member of the University of Texas faculty and a physician at the hospital. Intending to continue work at the hospital only, Nassar distributed a letter citing harassment from his supervisor, Dr. Levine, as the reason for his resignation from faculty. In response to his letter, Dr. Fitz, Nassar’s second-level supervisor, protested Nassar’s employment at the hospital on the grounds that Nassar was no longer a faculty member. His offer of employment at the hospital was subsequently withdrawn. Nassar filed suit alleging racial and religious discrimination and retaliation for his letter complaining about the harassment. While Nassar was victorious at the trial level on both counts, the U.S. Court of Appeals for the Fifth Circuit upheld only the retaliation claim. Following the Supreme Court’s decision, he will now have to return to a lower level court and prove that Dr. Fitz would not have objected to his continued employment if not for his desire to retaliate on behalf of Dr. Levine.
Plaintiffs like Maetta Vance, who allege harassment from intermediary supervisors, must now prove their employers were negligent in order to recover, a standard that Ginsburg noted will “scarcely afford the protection the Faragher and Ellerth framework gave victims.” Vance worked for Ball State University (BSU) as a catering assistant where she alleged that her co-worker, a catering specialist for BSU, harassed and discriminated against her on account of race. After BSU was unable to satisfactorily resolve the situation, Vance filed suit arguing that she had been subjected to a racially hostile work environment in violation of Title VII. The lower courts found that Davis was not Vance’s supervisor because she did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. As a result of the Supreme Court’s ruling, BSU is not liable for any discriminatory actions taken by Davis.
Both of the Court’s decisions have undoubtedly weakened the important Title VII protections afforded to the nation’s workers. However, employment discrimination is an area where the greatest strides have often been made by Congress rather than—and often in spite of—the Supreme Court.
Ginsburg has laid the foundation for the civil and human rights coalition. She charged the majority with disregarding the realities of the workplace and narrowing Title VII’s protections beyond what Congress had intended. Citing Congress’s intervention to correct the Court’s interpretations of Title VII in Ledbetter v. Goodyear Tire & Rubber as well as the passage of the 1991 Civil Rights Act Amendment following the Price Waterhouse v. Hopkins decision, Ginsburg ended both of her dissents with another call to Congress to intervene and overrule the majority. In the case of Nassar, there is already a vehicle: the Protecting Older Workers Against Discrimination Act, most recently introduced on July 30, 2013, which would explicitly state that the same standard of proof for proving discrimination under Title VII also applies to retaliation claims and to claims under other antidiscrimination statutes.
Christopher Paredes is the Leadership Conference Education Fund’s Summer 2013 Google Fellow. He graduated from Emory Law School in May 2013.