Employer Liability and Title VII: Recent U.S. Supreme Court Guidance on Supervisor Conduct and Retaliation

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1 Employer Liability and Title VII: Recent U.S. Supreme Court Guidance on Supervisor Conduct and Retaliation Presented by Jonathan S. Parritz Maslon Edelman Borman & Brand, LLP p July 11, 2013 Vance and Nassar 2 decisions resolving controversial issues under Title VII of the Civil Rights Act of 1964 ("Title VII"). Title VII is the primary federal law banning unlawful discrimination in employment. 1

2 Vance v. Ball State University Supervisor Liability Negligence or Strict Liability? Co-Worker or Supervisor? Under Title VII, employer is liable for harassing conduct by a nonsupervisory level employee if the plaintiff can prove that the employer was negligent in failing to prevent the harassment from taking place. Employer is strictly or automatically liable, meaning that the employer is liable even if it is not negligent, if the harasser is a supervisor, and the supervisor s harassment results in a tangible adverse employment action. Tangible adverse employment action includes, e.g., termination of employment, demotion, bad review, pay cut, or denial of promotion. 2

3 Facts of Vance African-American woman alleged racial harassment by white coworker. Employer not negligent because it responded reasonably to the incidents of which it was aware. Issue on appeal: whether strict liability applied because harasser was a supervisor. Ruling in Vance The Court held: Strict supervisor liability applies only: where perpetrator was empowered by the employer. to take tangible employment actions against the victim. 3

4 What is a Supervisor? To be considered a supervisor, harasser must be in position 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 fact that a supervisor s decisions are subject to approval of his or her superiors is not fatal to a claim of strict liability. Mere ability to direct another employee s tasks, by itself, is not sufficient to make the employer automatically liable. Result Ms. Vance loses because the parties agreed that the allegedly harassing co-worker did not have the power to hire, fire, demote, promote, transfer, or discipline her. Based on this admission, no basis for strict supervisor liability. Employer found to be neither negligent, nor strictly liable. 4

5 Evidence of Negligence Did employer: Monitor the workplace? Respond to complaints? Provide system for registering complaints? Encourage complaints to be filed? University of Texas Southwestern Medical Center v. Nassar Retaliation Liability Title VII, and virtually all federal, state and local anti-discrimination laws, prohibits retaliation against individuals who complain about discrimination or engage in other recognized types of protected conduct. 5

6 What is Retaliation? Any kind of adverse action that happens to an employee because he or she complained about harassment or provided information about a harassment complaint. Respect the Right to Report Discrimination 10/1/11 9/30/12 100,000 claims in private sector (near record) Age: 23% Disability: 26.5% Gender: 30.5% Race: 33.7% Retaliation: 38.1% (leading claim for 3 rd consecutive year) Source: 6

7 But-For? Test For Proving Causation in Retaliation Case Mixed Motive? Issue for Supreme Court: whether retaliatory motive must be sole or merely one contributing cause of adverse employment action. Facts of Nassar Plaintiff alleged superior biased against him because of religion and ethnic heritage Undeserved scrutiny of billing practices and productivity; Statements reflecting biased attitudes toward people of Middle Eastern descent. Plaintiff resigned from existing position and sent letter accusing supervisor of harassment. Plaintiff applied to continue working in a different position. Employer initially offered plaintiff another position, but withdrew offer after supervisor of accused harasser expressed disapproval of plaintiff s accusations and persuaded employer to withdraw offer. Plaintiff won retaliation case in the lower courts by proving that retaliatory motive was one of the factors which led to the adverse action. 7

8 Ruling in Nassar Supreme Court reversed and remanded, holding: Plaintiff must prove adverse employment action (not being reassigned) would not have occurred "but for" his complaints of harassment. Court applies tougher standard than applies in a typical case alleging illegal discrimination in such cases, discriminatory motive need only be one of many motives for the adverse employment action (a so-called "mixed motive"). In a retaliation case, a "mixed motive" is not sufficient. Key Take-Aways For Employers Develop and publicize strong anti-harassment, anti-discrimination and anti-retaliation policies with clear and multiple avenues for employees to report concerns. Provide supervisor training whereby supervisors learn the employer s policy and how to properly handle employee complaints and avoid charges of retaliation. 8

9 Employer Take-Aways Thoroughly investigate complaints of discrimination and harassment and if there is any wrongdoing found, be sure to adequately document the effective remedial action taken by the employer. Even if the investigation finds no wrongdoing, be sure to document the investigation and findings to show the company s due diligence. Review and revise job descriptions keeping in mind the Supreme Court s decision regarding who is and who is not a true supervisor for purposes of Title VII. Note: Title VII decisions may be applied to other federal laws, e.g., ADA and ADEA. Caution: State anti-discrimination laws could be more lenient to plaintiffs. Thank You! Jon Parritz Maslon Edelman Borman & Brand, LLP Minneapolis, MN 9