Supreme Court rulings raise standards for proving discrimination at work

Originally posted by Judy Greenwald on http://www.businessinsurance.com

Employers scored two victories before the U.S. Supreme Court last week that legal experts say will enable them to more effectively defend themselves in employment lawsuits.

In its 5-4 ruling in Maetta Vance v. Ball State University et al., the high court narrowed the definition of supervisor for purposes of discrimination cases.

And plaintiffs will find it more difficult to prove retaliation after the high court's 5-4 ruling inUniversity of Texas Southwestern Medical Center v. Nassar.

In Vance, the court held that an employee is a supervisor for purposes of vicarious liability under Title VII of the Civil Rights Act of 1964 only if he or she has the power to make “tangible” employment actions against the victim, such as hiring or firing. The court said even if there is no tangible employment action, the employer may escape liability by establishing it exercised reasonable care to prevent and correct any harassing behavior.

The court said in cases when co-workers are inflicting psychological injury, employees may still prevail by showing the employer was negligent in permitting the harassment to occur. Its majority ruling criticized the Equal Employment Opportunity Commission's broader definition of supervisor as a “study in ambiguity.”

The ruling, which affirmed a decision by the 7th U.S. Circuit Court of Appeals in Chicago, said, “Under the definition of "supervisor” that we adopt today, the question of supervisor status, when contested, can very often be resolved as a matter of law before trial.

“The elimination of this issue from the trial will focus the efforts of the parties, who will be able to present their cases in a way that conforms to the framework that the jury will apply.”

The case involved an African-American food worker's allegations that she was the victim of racially based harassment by a white female whom she identified as a supervisor.

Bernard J. Bobber, a partner with Foley & Lardner L.L.P. in Milwaukee, who was not involved in the case, said the court accepted the 7th Circuit's definition of a supervisor and rejected the EEOC's definition, which employers do not like because the agency's definition “leaves lots of room for argument” about who is a supervisor.

“It's a good decision for employers” and “should provide some bright rules in those jurisdictions that aren't already required to follow that particular test,” said Steve A. Miller, a partner with Fisher & Phillips L.L.P. in Chicago, who was not involved in the case.

In its 5-4 ruling in Nassar, which involved a charge of discrimination and retaliation by a physician of Middle Eastern origin, the court held that a defendant is not liable for an action if he would have taken the same action anyway for other, nondiscriminatory reasons. It rejected the standard that requires a plaintiff to prove only that discrimination was a motivating factor for an adverse employment action.

Lessening the causation rules in cases of wrongful employer conduct prohibited by Title VII of the Civil Rights Act of 1964 could “contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies and courts to combat workplace harassment,” said the majority opinion, reversing a decision by a panel of the 5th U.S. Circuit Court of Appeals in New Orleans.

“This case is a true watershed development in that it presents a dramatic shift in the court's approach to retaliation claims,” said Gregory Keating, a shareholder with Littler Mendelson P.C. in Boston.

The court's ruling has “adopted a very strict test” for establishing causation, unlike several other cases decided by the court in recent years that made retaliation easier to establish, said Mr. Keating, who was not involved in the case.

Russell Cawyer, a partner with Kelly Hart & Hallman L.L.P. in Fort Worth, Texas, said, while the ruling will not reduce the number of retaliation charges filed by plaintiff attorneys, defendants will be more successful in having these cases dismissed.