Workplace Discrimination

Discrimination on the job is not easy to prove, and now it just got harder to do in a court of law.

In June 2013, the United States Supreme Court issued two rulings that essentially made it harder for workers to prove they suffered discrimination at their workplace.

In one ruling, the narrow the definition of what constitutes a supervisor, when it comes to racial and sexual harassment cases, while the other adopts a tougher standard for workers to prove retaliation for complaining about discrimination.

Mobile lawyer Carter Hale handles a lot of labor cases, but usually for the defendant.

“Over the last 15 years we’ve seen a huge spike and litigation and the problem in the past has been there was no means by which an employer could present its case and be dismissed at an earlier stage in the case without going all the way through trial,” Hale explained.

According to the By the numbers, Alabama had more than 3,105 charges of discrimination in the workplace in 2013.  A slight decrease from the 3,246 the year before.  There was an increase in the number of cases based on color and retaliation which are the two areas the rulings target.

Before the rulings, all an employee had to show was a mixed motive on the part of his or her employer for their termination.  Say…if the harassing supervisor was found to have retaliated against an employee, like demoting the person, the employer was strictly liable for that action.

The standard is much higher now to weed out what businesses consider frivolous lawsuits that can run upwards of $40,000 dollars.

“It doesn’t immune the employer they still have to present legitimate evidence of nondiscriminatory reasons why they terminated that employee and why they demoted that employee.”

Reports from the Equal Employment Opportunity Commission, or the EEOC, will also be taken into accound. For instance, whether there’s a pattern in the practice where certain employees are mistreated.
Decision Summaries

June 25, 2013 – Today, the U.S. Supreme Court issued two significant, landmark employment law decisions. Both involve issues raised under Title VII of the Civil Rights Act of 1964, and both are favorable rulings for employers. With the very recent but full-court press with which the EEOC, along with a growing number of state and local governments, are restricting (and in many instances prohibiting altogether) criminal background checks of applicants, employers undoubtedly welcome today’s decisions from the U.S. Supreme Court with arms opened wide. Below are short summaries of the holdings in the two cases, and what they mean for employers.


The U.S. Supreme Court ruled that Title VII retaliation cases must be proved by a “but for” standard of proof, not a lower standard that had been used in various courts before. Before the Court in University of Texas Southwestern Medical Center v. Nassar was the question:

Whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).

The Court’s 5-4 decision is important because it expressly rejects the lower standard of proof of a “motivating factor”, whereby a plaintiff only needed to prove that an improper motive was just one of a handful of reasons for his or her employer’s action. In the past, many plaintiffs could meet this “motivating factor” burden and therefore get their cases to the jury simply by presenting evidence that one of the employer’s reasons for its action (such as termination) was improper under the law (for example, retaliating against an employee for making sexual harassment allegations). Application of that standard essentially rendered irrelevant rebuttal evidence presented by the employer in defense of and to justify its employment actions.

For example, assume an employee has received several warnings for tardiness and  absenteeism. Anticipating she may be fired, she makes a preemptive move by registering a complaint with her supervisor that a co-employee sexually harassed her. If she continues to be tardy and, consequently, her employer terminates her employment for this reason, she could file suit (after going through the requisite EEOC charge process), claiming her termination was improper under Title VII as retaliation on the part of her employer. Under the former “motivating factor” standard, the employer would almost never be able to have a frivolous suit dismissed. It might ultimately prevail at trial in front of a jury, but only after a lengthy and costly litigation process.

The U.S. Supreme Court clearly considered this very scenario in reaching its decision in the Nassar case, noting that the higher standard may stop the growing number of retaliation cases that have been filed:

The proper interpretation and implementation of §2000e–3(a) and its causation standard have central importance to the fair and responsible allocation of resources in the judicial and litigation systems. This is of particular significance because claims of retaliation are being made with ever-increasing frequency. The number of these claims filed with the Equal Employment Opportunity Commission (EEOC) has nearly doubled in the past 15 years – from just over 16,000 in 1997 to over 31,000 in 2012. … Indeed, the number of retaliation claims filed with the EEOC has now outstripped those for every type of status-based discrimination except race.

In addition[,] lessening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment. Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation. If [the employer] were to prevail in his argument here, that claim could be established by a lessened causation standard, all in order to prevent the undesired change in employment circumstances. 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.

The Nassar case, along with the High Court’s decision this morning in Vance v. Ball State University, will have a significant impact on Title VII cases.

You can download the (very long) decision [PDF] here.


The U.S. Supreme Court answered that question this morning in Vance v. Ball State University. First, a brief primer: Under Title VII, employers may be strictly liable for harassment by a “supervisor.” Employers may also be liable for harassment by a co-worker, but only if the company knew or should have known of the co-worker’s conduct and failed to take prompt and appropriate corrective action. A question that remained in dispute, however, was who exactly qualified as a “supervisor” under Title VII. The High Court answered that very question today in the Vance case.

The plaintiff in the Vance case was a catering assistant in the Ball State University. She alleged that another Ball State employee, a catering specialist, had created a racially-hostile work environment, and sued Ball State University for workplace harassment by a supervisor. The plaintiff argued that because the catering specialist could direct her day-to-day work, the catering specialist was a “supervisor” for purposes of Title VII.

The U.S. Supreme Court rejected this argument and held that, to be a supervisor for purposes of Title VII, a person must have the power to take a “tangible employment action” against the targeted employee. In order to qualify as a “supervisor” so as to create strict liability for an employer, the Court stated that someone must be able 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” (what the Court referred to as a “tangible employment action”).

The issue before the Court was:

Whether the “supervisor” liability rule established [in prior precedent] (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline’ their victim.”

The Court this morning narrowed the definition further:

We hold that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empow­ered by the employer to take tangible employment actions against the victim[.]

In doing so, the Court rejected a more expansive definition of “supervisor” that had been advanced by the EEOC.  In its ruling, the Court said that a supervisor is more than just someone who has the ability to “direct another employee’s tasks”.  While that person can create a hostile work environment, it is not enough to establish vicarious liability to the employer.

The case was also decided by a 5-4 majority. In a rather heated dissent, Justice Ginsburg stated she “would follow the EEOC’s Guidance and hold that the authority to direct an employee’s daily activities establishes supervisory status under Title VII.”

The Ball State University case will most certainly have important implications as to the scope of sexual harassment cases brought against employers.

You can download the (also very long) decision here.

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