End of Summer Round-up: Recent Supreme Court Rulings Establish More Onerous Burden for Plaintiffs Pursuing Discrimination and Retaliation Claims Against Employers

On June 24, 2013, the Supreme Court issued two important decisions interpreting Title VII of the Civil Rights Act of 1964 (“Title VII”) in a manner more favorable to employers who are faced with defending against workplace harassment and retaliation claims.

Workplace Harassment Claims – Who is Considered a Supervisor?

In a highly anticipated decision, the Supreme Court defined which employees are “supervisors” for purposes of subjecting an employer to vicarious liability for alleged harassment by its employees. Vance v. Ball State University, 133 S. Ct. 2434 (June 24, 2013). In order for vicarious liability to be imposed upon an employer for harassment by a supervisor, a plaintiff alleging a claim of workplace harassment must demonstrate that the alleged harasser had the authority to take tangible employment action against the employee. Specifically, the Supreme Court stated, that in order to be considered a “supervisor,” the alleged harasser must have been entrusted with the power to “hire, fire, promote, demote, transfer or discipline” the employee. In light of the Supreme Court’s holding in Vance, an employer will only be strictly liable for the alleged harassing conduct of those employees who fit this narrow definition of a “supervisor.” For alleged harassment by non-supervisory employees, the Plaintiff must establish that the employer was negligent with respect to the alleged harasser’s conduct – a much lower standard.

Retaliation Claims – “But For” Causation Standard

Employees bringing claims of retaliation under Title VII now have a greater burden to meet in order to prevail against their employers, due to the Supreme Court’s ruling in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (June 24, 2013). The Supreme Court confirmed the mixed motive causation standard applicable in discrimination suits based on status in a protected class, which only requires an employee to show that his or her protected status was a “motivating factor” to the adverse decision. However, the Supreme Court expressly held that the mixed motive standard does not apply to retaliation claims. Instead, to succeed on a retaliation claim under Title VII, the employee must prove that the alleged retaliation would not have occurred “but for” his or her complaint of or opposition to an unlawful employment practice. The Supreme Court explained that the plain language of the 1991 Amendment to Title VII, which proscribed a lesser standard for the discrimination provisions but remained silent on those provisions pertaining to retaliation, supports the application of differing causation burdens to such claims.

Title VII prohibits employment discrimination and harassment based on an employee’s race, color, religion, sex, and national origin. Additionally, Title VII prohibits retaliation against an employee who has made a complaint of, opposed, or participated in an investigation into an unlawful employment practice under Title VII.

With retaliation claims on the rise in recent years, this strict causation standard for retaliation claims under Title VII may result in fewer retaliation claims reaching a jury, a welcome outcome for employers.

Leech Tishman’s Employment Practice Group is available to employers who wish to learn more about what impact these recent decisions may have on their business, as well as what employers can now expect if an employee brings a claim under Title VII.

Decision to Watch: The Supreme Court Agrees to Review President Obama’s NLRB Recess Appointments

The Supreme Court has agreed to review the D.C. Circuit Court’s decision in National Labor Relations Board v. Noel Canning and, as a result, will resolve the hotly contested authority of President Barack Obama’s recent National Labor Relations Board (“NLRB”) recess appointees. The NLRB, which, among other things, investigates unfair employment practices, is a five-member agency which requires a three-member quorum to lawfully operate. In January 2012, President Obama appointed three members to fill then-existing vacancies on the NLRB in order to satisfy the quorum requirement. The President’s appointments, however, have been aggressively challenged as invalid because they were not made during a formal recess of Congress, but rather during an intrasession break.

In Noel Canning, after receiving an adverse ruling from the newly assembled NLRB, employer Noel Canning challenged the decision claiming that because the President’s appointments were unconstitutional, any action by the NLRB involving those appointees is invalid. On January 25, 2013, the D.C. Circuit Court ruled in favor of Noel Canning and held that the appointments had in fact violated the Recess Appointments Clause of the Constitution because they were made during an intrasession break of Congress instead of an intercession break. Accordingly, should the Supreme Court affirm that the appointments were unconstitutional, all NLRB decisions involving the appointees effectively lacked the mandatory quorum and were thus invalid. Such a decision will have serious implications for all employers impacted by claims decided by the potentially illegitimate NLRB.

Please feel free to contact Leech Tishman’s Employment Practice Group with any questions regarding the employment law issues presented in this article.

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