Supreme Court Decides Cases in Favor of Employers
While the two decisions focus on different issues, both affirm the importance of
maintaining proactive employment policies and practices in the workplace
In two cases that will be widely viewed as victories for employers, the U.S.
Supreme Court today decided two important cases under Title VII of the Civil
Rights Act of 1964. In both decisions, the Court was divided 5-4, along
ideological lines, with the more conservative justices siding with the
In Vance v. Ball State University, the Supreme Court addressed the
definition of a “supervisor” in harassment cases. In two 1998 decisions, the
Court had held that, in cases involving workplace harassment, employers are
directly responsible for harassment by a supervisor; if harassment is committed
by a co-worker, employers are responsible only if they fail to control working
In those cases, the Court did not define “supervisor,” and over the past 15
years, a split over the definition has developed in the federal courts. One
group of courts has held that a supervisor is someone who directs and oversees
an employee’s daily work, and other courts have held that a supervisor is only
someone who has the authority, on behalf of the employer, to hire, fire, demote,
transfer or discipline the employee.
In Vance, the Supreme Court decided that a supervisor is someone who is
“empowered by the employer to take tangible employment actions” against the
complaining employee. That means someone who has the power to hire, fire, or
discipline the employee. The Court’s decision means that, when employees bring
claims involving those who direct and oversee an employee’s daily work but who
do not have decision-making authority, employer liability depends upon whether
the employer failed to control working conditions.
In the second decision, University of Texas Southwestern Medical Center v.
Nassar, the Supreme Court addressed how employees may prove retaliation
based on protected activity under the discrimination statutes.
Under the anti-retaliation provisions of these laws, it is unlawful for
employers to fire, demote, harass or otherwise take adverse actions against
employees because they have complained about discrimination. In recent years,
retaliation charges submitted to the EEOC have sharply risen, from around 18,000
in 1997 to nearly 38,000 in 2012.
In today’s decision, the Court held that employees must show that “but for” the
employer’s improper motive – that is, the “retaliation” – the employer would not
have taken an adverse action against the employee. The lower courts had been
divided over whether the “but for” standard was the correct one, or whether
employees could prove retaliation under a “mixed motive” standard that would
require proof only that the improper motive was one of several reasons for the
Lessons for Employers
The two decisions signal that maintaining proactive employment policies and
practices in the workplace is critical. Under the Vance case, proactive
employer policies relating to discrimination and harassment are of paramount
importance, while the Nassar case makes it clear that employers may take
employment actions that are appropriately documented and supported, even if an
employee has complained about discrimination in the past.