Two recent decisions from the United States Supreme Court assist employers in defeating claims of discrimination and retaliation.
The first case, Vance v. Ball State University, involved a claim by an African-American employee at Ball State University who alleged that she was the victim of discrimination by her supervisor. Previously, courts used the EEOC’s interpretation of supervisor which included the ability to control someone else’s daily activities and evaluate performance. Ball State University argued that a “supervisor” must have more power, such as the ability to take a tangible action such as hiring, firing, or promoting the employee.
Today the Supreme Court adopted the rule proposed by the employer, holding that for purposes of this Title VII rule, to be a “supervisor,” a person must have the power to take a “tangible employment action” against the employee. That is, he or she must be able to “effect 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.’” The employer was entitled to win the case because Vance did not show that the person who discriminated against her was a supervisor under the Court’s definition.
The second case, University of Texas Southwestern Medical Center v. Nassar, clarified the standard of proof that an employee needs to meet to succeed in a retaliation claim. In 1991 Congress amended Title VII to say that all an employee has to show in a claim of discrimination is that discrimination was a “motivating factor” in the employment decision. If so, the employee wins the case, but the employer can avoid having to pay damages only if the employer can show that it would have taken the same action anyway. This same burden of proof has been applied to retaliation claims as well.
In Nassar, the Court held that the “motivating factor” provision only applies to claims of “discrimination” — which, in this context, means only claims of discrimination based on for instance, race, sex, and religion. As to retaliation claims, the Court held that the employee must meet the “but for” stricter burden of proof. In other words, the employee must meet the higher burden of proving that the employer would not have taken the challenged action, for example termination, if the employee had not filed an EEOC complaint.