Employment Law: Employers Gain Edge In Defending Retaliation Claims
June 24, 2013, was a good day for employers. Two decisions came down from the U.S. Supreme Court that bode well for defense attorneys by limiting claimants chances of prevailing on retaliation claims and claims against employers for vicarious liability for the illegal actions of putative supervisors. Each case had the exact same split, with Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts joining the majority opinion, and Justices Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan offering dissenting opinions.
In University of Texas Southwestern Medical Center v. Naiel Nassar, the respondent was a doctor of internal medicine and specialized in infectious diseases at the medical center. Naiel Nassar also happened to be of Middle Eastern descent. In 2004, Dr. Beth Levine became his ultimate supervisor and allegedly had a bias against the respondent based upon his religion and ethnicity, as evidenced by unjustified scrutiny of Nassar's billing practices and comments such as, "Middle Easterners are lazy."
Nassar decided that he wanted to leave his teaching post at the university, yet continue to work at the medical center. He wrote a letter to Dr. Fritz, Levine's superior, citing as his reason for leaving his teaching post "harassment" by Levine. However, once Nassar left his teaching position, as per the rules of the university and at the urging of Dr. Fritz, the medical center withdrew its offer of a position.
Nassar filed a Title VII suit alleging two claims. First, he alleged status based discrimination via harassment which resulted in his constructive discharge. Second, he alleged that Dr. Fritz's efforts to stop the medical center from hiring Nassar was in retaliation for Nassar's complaints about Levine. The jury found for Nassar on both counts and awarded damages.
The U.S. Court of Appeals for the Fifth Circuit vacated the jury's verdict as to the constructive discharge, concluding that Nassar has submitted insufficient evidence. However, it affirmed as to the retaliation claim, reasoning that the claimant need only show that the retaliation was a "motivating factor" for the adverse employment action.
The Supreme Court held that claimants alleging retaliation must prove their claims under a more stringent "but for" causation standard, while noting that status based claims (race, color, religion, sex, nationality) may succeed under a mixed motive theory. The majority opinion, written by Justice Kennedy, took pains to go through the salient statutory history of Title VII, while comparing its analysis to that of Gross v. FBL Financial Services Inc., 557 U.S. 167, 129 S.Ct. 2343 (2009).
Ultimately, the decision is founded on the plain textual differences between Title VII's provisions found in 2000e-2(a), which prohibits status based employment discrimination and 2000e-3(a), which prohibits employer retaliation. Basically the 1991 amendments to Title VII codified some of the mechanics of Price Waterhouse's burden-shifting schema. The amendments codified, in 2000e-2(m), that claimants alleging status based discrimination claims need only demonstrate that the discriminatory animus was a motivating factor in the adverse employment action. On the other hand, 2000e-3(a) prohibited employer retaliation "because" an employee opposed a prohibited practice or complained of unlawful employment practices. The Supreme Court held that the word "because" meant that the retaliation was the "but for" cause of the adverse employment action.
The phrase "mixed motive" refers to instances where an employer has both legitimate and unlawful motives for discriminating or retaliating. As noted in the Nassar decision, mixed motive claims of race, color, religion, sex and national origin discrimination can result in employer liability for attorney fees and costs, declaratory relief and some forms of injunctive relief where the claimant can show that his or her status was a motivating factor in the adverse employment action. According to the Nassar majority, the employer's "proof that it would still have take the same employment action would save it from monetary damages and a reinstatement order."
Mixed motive claims of retaliation have a less certain future, and have a higher likelihood of being short-circuited through summary judgment. And that was part of the motivation of the majority in this decision: to discourage retaliation claims, encourage a "fair and responsible allocation of resources in the judicial and litigation systems," and make it more likely that "dubious claims" be stopped at the summary judgment stage.
Unfortunately, while retaliation claims are on the rise with shocking growth statistics, it is unlikely that this decision will have the floodgate-stopping effect that the deciding justices hoped for. Once a claimant identifies evidence of retaliatory animus, even if there is also evidence demonstrating a legitimate business reason for the employment action, it is the unique province of the jury to weigh the factors to determine which factor was the driving factor, the "but for" cause of the adverse employment action.
Definition Of Supervisor
On the same day, with the same array of justices on either side, came the decision in Maetta Vance v. Ball State University. In Vance, the Supreme Court decided to create a rather bright line rule that the definition of supervisor is one who makes tangible employment decisions, such as "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Vance v. Ball State University, 133 S.Ct. 2434, 2443 (2013).
Starting with the usual analysis of agency law as the precursor to employer vicarious liability, the Supreme Court in Vance went on to note that Burlington Industries v. Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998), identified two scenarios where an employer would be vicariously liable even in the absence of negligence: 1) "when a supervisor takes a tangible employment action (with illegal animus), and, 2) when the claimant can demonstrate a hostile work environment at the hands of the supervisor and the employer is unable to raise an affirmative defense such as, i) that it exercised reasonable care to prevent and promptly correct illegal behavior, and ii) that the claimant "unreasonably failed to take advantage of any preventive or corrective opportunities that were provided."
Through the years, there was a split in the lower courts as to the definition of a supervisor. Some courts held that an employee is not a supervisor unless he or she can take "tangible employment decisions such as hiring, firing, promoting, demoting, transferring or disciplining" the victim. Other courts followed the ambiguous delineation suggested by the Equal Employment Opportunity Commission — that the determination was based upon whether or not the individual had "significant direction over [the claimant's] daily work."
In Vance, the Supreme Court decided to narrow analysis of who constitutes a supervisor by stating that a supervisor is one who may effect a "significant change in employment status, such a hiring, firing, failing to promote, reassignment which significantly different responsibilities, or a decision causing significant change in benefits."
On the same day as the Nassar decision, echoing the Nassar decision, the Vance majority made the same argument for judicial economy, without calling it that, to justify its bright line rule regarding the definition of a supervisor. Ultimately, the Supreme Court majority opined that its definition would avoid juror confusion, which is a real concern in employment law cases.
The Court observed in Vance that its rule regarding the definition of supervisors has been the law of three circuits: the First, Seventh and Eighth Circuits. "We are aware of no evidence that this rule has produced dire consequences in these …jurisdictions."
It is doubtful that the Supreme Court's definition of supervisor will produce anything dire, other than to shield employers from vicarious liability in certain situations. It remains very important for employers to proactively manage their workplace environment, keeping it free from harassment and discrimination. Even where a claimant can't show that their harasser is a supervisor, employers can still be liable under the theory of negligently failing to prevent harassment in the workplace.•