Supreme Court Update: Vance v. Ball State University (11-556) and University of Texas Southwestern Medical Center v. Nassar (12-484)

June 24, 2013 Supreme Court Update

Greetings, Court fans!

The Court handed down two major employer victories in Title VII cases today: Vance v. Ball State University (11-556), in which the Court narrowly defined "supervisors," thus limiting employer liability in workplace harassment cases; and University of Texas Southwestern Medical Center v. Nassar (12-484), holding that plaintiffs asserting retaliation claims must establish traditional "but-for" causation, rather than a lesser "motivating factor" causation standard.

Justice Alito led the conservative majority in Vance v. Ball State University (11-556), which clarified who is and who is not a "supervisor" under Title VII. Title VII imposes liability in harassment cases differently based on the status of the alleged harasser. If the harasser was the victim's co-worker, the employer is only liable if the employer itself was negligent. But if an employee suffers harassment at the hands of a "supervisor," the rules change, allowing for vicarious liability if the harasser is aided in the harassing conduct by his or her agency relationship with the employer. If the supervisor's harassment results in a tangible employment action, the employer is strictly liable; if there is no tangible employment action, the employer may avail itself of an affirmative defense by showing that (1) it exercised reasonable care to prevent and correct harassing behavior and (2) the complaining employee unreasonably failed to take advantage of available preventative or corrective measures. Resolving a question left open in Burlington Industries, Inc. v. Ellerth (1998) and Faragher v. Boca Raton (1998), the Court defined "supervisor" narrowly, limiting that status to people empowered by the employer to take tangible employment actions against the victim.

In the case before the Court, Plaintiff Maetta Vance, an African-American catering assistant at Ball State University sued the university, alleging that Saundra Davis, a catering specialist in her department, had created a racially hostile work environment. Vance acknowledged that Davis did not have the authority to hire, fire, demote, promote, transfer, or discipline her. The district court granted summary judgment for the university, holding that it could not be vicariously liable for harassment, and the Seventh Circuit affirmed. The Court, voting 5-4, also affirmed.

The Court determined that an employer is vicariously liable for harassment only where the harassing employee is empowered "to take tangible employment actions against the victim, i.e., 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.'" In so holding, the Court rejected the EEOC's Enforcement Guidance, which linked supervisor status only to the ability to exercise significant direction over another employee's daily work – guidance the majority deemed "nebulous" and "a study in ambiguity." To the majority, the framework of Ellerth and Faragher contemplates a "unitary category of supervisors . . . with the authority to make tangible employment decisions" – and not a second category of supervisors who lack such authority but who nonetheless exert considerable authority over co-workers. The Court noted that most workplace harassers – including ordinary, non-supervisory co-workers – are aided in some way by the existence of an agency relationship with the employer, thus "something more" is necessary to warrant vicarious liability for supervisors under the Ellerth/Faragher framework. "The ability to direct another employee's tasks is simply not sufficient." (Justice Thomas issued a separate concurrence, noting that he believed that Ellerth and Faragher were wrongly decided, and explaining that he joined the majority opinion "because it provides the narrowest and most workable rule for when an employer may be held vicariously liable for an employee's harassment.")

Justice Ginsburg issued a sharp dissent, which Justices Breyer, Sotomayor, and Kagan joined. The dissenters would have followed the EEOC's Guidance, which was issued in response to Ellerth and Faragher, and would have held that the authority to direct another employee's daily activities establishes supervisory status for Title VII purposes. Illustrating the implications of the majority's decision, the dissent described several cases of egregious harassment in which employees with authority to control the conditions of a subordinate's daily work life used their positions to aid their harassment, and concluded that "in none of them would the Court's severely confined definition of supervisor yield vicarious liability for the employer." In the dissenters' view, the majority "embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ," and "shuts from sight the ‘robust protection against workplace discrimination Congress intended Title VII to secure.'" To them, the Court's narrow definition of supervisory authority shifts the Ellerth/Faragher framework "in a decidedly employer-friendly direction" and will leave many harassment victims without a remedy under Title VII. Noting that Congress in 2009 enacted the Lilly Ledbetter Fair Pay Act "to correct this Court's wayward interpretations of Title VII," the dissent called on lawmakers to do so again. "The ball is once again in Congress' court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the court weakens today."

The Court again split 5-4 in University of Texas Southwestern Medical Center v. Nassar (12-484), with Justice Kennedy taking the lead this time for the conservatives. The issue: whether a plaintiff asserting a Title VII retaliation claim must prove but-for causation (the traditional test) or whether he may instead meet the less stringent "motivating factor" test that Congress adopted for claims of discrimination based on race, color religion, sex, or national origin (status-based claims). The majority found that but-for causation was required.

Nassar, a physician on the faculty of the University of Texas Southwestern Medical Center, was also employed by Parkland Memorial Hospital, which had an affiliation agreement with the University requiring the Hospital to offer vacant staff physician posts to University faculty. Things went along just fine when Dr. Keiser supervised Dr. Nassar, but in 2004, Dr. Levine was hired to oversee the medical center. Levine was critical of Nassar's work ethic and billings and there was evidence that she remarked that "Middle Easterners are lazy." Nassar complained about Dr. Levine multiple times to Dr. Fitz, Chair of Internal Medicine. In 2006, Nassar decided to leave the University and to work exclusively for the Hospital. While the Hospital initially told Nassar that its affiliation agreement with the University prohibited making the appointment if Nassar was not on faculty, the Hospital ultimately orally extended him an offer. In Nassar's resignation letter to the University, he wrote that his primary reason for resigning was "the continuing harassment and discrimination" by Levine. According to Keiser, Fritz told him that the letter had "publicly embarrassed" Levine and that she should be "publicly exonerated." Thereafter, Fritz actively opposed the Hospital's hiring of Nassar as in violation of the affiliation agreement, and the Hospital rescinded its offer. After exhausting his administrative remedies, Nassar filed suit in district court claiming that (1) Levine's racial and religious discrimination resulted in his "constructive discharge" from the University in violation of § 2000e-2(a); and (2) Fritz's efforts to prevent the Hospital from hiring him constituted retaliation in violation of § 2000e-3(a). The jury found for Nassar on both counts and awarded substantial damages. On appeal, the Fifth Circuit found insufficient evidence to support the constructive discharge claim, but affirmed the retaliation finding, concluding that a showing that retaliation was a "motivating factor" was all that was required. Rehearing en banc was denied over the dissent of four judges, who argued that the motivating factor test was inapplicable to retaliation claims under Title VII.

The Court agreed with the four dissenters. In addition to barring discrimination based on race, color, religion, sex, or national origin in § 2000e-2(a) (status-based discrimination), § 2000e-3(a) of Title VII also prohibits discrimination "because of" an employee's having opposed, complained about, or sought remedies for, unlawful workplace discrimination (retaliation). Here, the Court had to grapple with the meaning of the term "because of." As Justice Kennedy explained, causation is a standard requirement of any tort claim. In the ordinary course, causation requires a plaintiff to prove that the harm would not have occurred "but for" the defendant's improper conduct. (E.g., If Fritz would still have objected to the Hospital's hiring of Nassar because of the requirements of the affiliation agreement – apart from any alleged interest to exonerate Levine – then but-for causation would not be satisfied.) Congress is assumed to know this background tort principle and not to have altered this default rule absent a contrary indication in the statute. Here, no such indication exists.

In Price Waterhouse v. Hopkins (1989), the Court adopted a burden-shifting framework for discrimination claims under Title VII. Shortly thereafter, Congress codified a modified version of this burden shifting framework in the Civil Rights Act of 1991. Under the 1991 Act, "an unlawful employment practice is established when the [plaintiff] establishes that race, color, religion, sex, or national origin was motivating factor for any employment practice…." If the employer establishes that it "would have taken the same action in the absence of the impermissible motivating factor," the plaintiff may obtain declaratory and injunctive relief, but not damages. The plain language Congress chose indicates that it was limiting the "motivating factor" test to status-based discrimination claims (i.e., "race, color, religion, sex, or national origin was a motivating factor..."). The Court's interpretation was further supported by its recent decision in Gross v. FBL Financial Services, Inc. (2009), where the Court – relying on various dictionary definitions and basic tort law causation concepts – had found that similar "because of" language in the Age Discrimination in Employment Act required proof of but-for causation.

The majority swiftly rejected the arguments against its interpretation, key among them the textual counterargument offered by the United States and respondent, which went like this: (1) retaliation is defined as an unlawful employment practice; (2) §2000e-2(m) permits unlawful employment practices to be proved based on a showing that "race, color, religion, sex or national original was a motivating factor"; and (3) when someone suffers retaliation for complaining about race discrimination, race is a motivating factor. The majority rejected this three-pronged attack with its own one-two-three punch. First, while Title VII defines unlawful employment practice to include retaliation, § 2000e-2(m) only lists five specific unlawful practices (all status based) and does not include retaliation. Second, Congress chose to place the motivating factor test not in a section of general applicability to Title VII, but in the §2000e-2(m), a section relating only to status-based claims. Retaliation claims are in an entirely different section, § 2000e-3(a). Third, the fact that the Court had previously read retaliation protections into broadly worded anti-discrimination statutes was of no moment because Title VII was not a broadly worded anti-discrimination provision. It was extremely detailed and dealt with status-based discrimination and retaliation separately. Thus, it is not fair to assume that Congress blithely thought it was applying the motivating factor test across the board when it was explicitly dealing with retaliation claims elsewhere. Making the EEOC's bad day even worse, the Court once again declined to give deference to its interpretation applying the motivating factor test to retaliation claims, finding that it lacked the power to persuade since it failed to discuss the "particular interplay among the status-based discrimination provision. . . , the antiretaliation provision. . ., and the motivating-factor provision."

With a nod to practicality that we've seen more and more of from the Court, Justice Kennedy noted that the proper interpretation of the causation standard for retaliation claims was of "central importance" given the dramatically increasing number of these claims, and the possibility that lessening the causation standard might contribute to the filing of "frivolous claims." Even if "the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage."

Justice Ginsburg penned another fiery dissent, joined once again by Justices Breyer, Sotomayor and Kagan. In her view, "[r]etaliation for complaining about discrimination is tightly bonded to the core prohibition" against status-based discrimination and "cannot be disassociated from it." Indeed, the Court had repeatedly found that retaliating for complaining about discrimination based on a protected characteristic is discrimination based on that characteristic. Hence, the Court has read retaliation protections into various discrimination statutes that are silent on the issue. But here, where Title VII expressly protects against retaliation, the Court severs the bond between status based discrimination and retaliatory discrimination. The Court has mistakenly taken Congress's 1991 Act – intended to strengthen employee protections and afford a standard even more protective than Price Waterhouse – and has instead used that Act to reign in protection against retaliation. "[T]he Court appears driven by a zeal to reduce the number of retaliation claims filed against employers." Echoing her words in Vance v. Ball State, Ginsburg closed by urging Congress reverse the Court's misguided course.

We'll be back soon with more from today's lineup. Then stay tuned – with same sex marriage, voting rights, and other high profile cases still undecided, this promises to be quite a week.

Kim, Jenny & Julie

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400