Clearer Employer Liability Standards for Title VII Supervisor Harassment and Retaliation Claims

Vance's Allegations of Supervisor Harassment

Metta Vance, an African-American woman, began working for Ball State University (BSU) in 1989 as a substitute server in the catering department. In 1991 she was promoted to a part-time catering assistant position, and in 2007 was selected for a full-time catering assistant position. During her employment, Vance filed a number of complaints alleging racial discrimination and retaliation; however, the only relevant incidents that formed the subject of the litigation concern Vance's interactions with BSU catering specialist Saundra Davis.

In internal complaints to BSU and Equal Employment Opportunity Commission (EEOC) charges, Vance alleged that Davis, a Caucasian woman, subjected her to racial discrimination and harassment. Specifically, she complained that Davis “gave her a hard time at work by glaring at her, slamming pots and pans around her, and intimidating her.” Id. at 2439. These workplace issues persisted despite BSU's attempts to address the problem, and as a result Vance filed a lawsuit in the United States District Court for the Southern District of Indiana alleging, among other things, a racially hostile working environment in violation of Title VII.'

The district court granted summary judgment for BSU because Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. Thus, Davis was not Vance's supervisor. The court also held that BSU was not liable on negligence grounds because it responded to each of Vance's complaints. The Seventh Circuit affirmed.

Harassment and Supervisor Standards

Title VII makes it unlawful for an employer to discriminate against any individual with respect to “compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C ' 2000e-2(a). It is also unlawful under Title VII for an employer to permit harassment that is sufficiently severe or pervasive “to alter the conditions of the victim's employment and create an abusive working environment.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971).

Whether an employer is liable for harassment depends in large part on whether the harasser is a supervisor. If the harasser is the victim's coworker, the employer is liable only if it was negligent in controlling working conditions. Burlington Industries, Inc. v. Ellerth, 542 U.S. 742 (1998) (Ellerth); Faragher v. Boca Raton, 524 U.S. 775 (1998) (Faragher). An employer is strictly liable, however, for harassment by a supervisor that results in tangible employment action against the victim. Id. If harassment by a supervisor does not result in tangible employment action, the employer may escape liability by establishing an affirmative defense that “(1) the employer exercised reasonable care to prevent and correct any harassment and (2) the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities the employer provided.” Vance, 133 S. Ct. at 2439 (citing Ellerth and Faragher).

Because so much depends on whether the harasser is a supervisor, employers must be able to easily determine whether an individual is a supervisor. However, the Supreme Court, in Ellerth and Faragher, failed to definitively address who is a supervisor under Title VII, and a split between the circuit courts ensued.

Several circuit courts, including the Seventh Circuit, took the position that an employee is not a supervisor for purposes of Title VII unless he or she has the power to “hire, fire, demote, promote, transfer, or discipline” the victim. Vance v. Ball State Univ., 646 F.3d 461, 470 (7th Cir. 2011) aff'd, 133 S. Ct. 2434 (2013); Noviello v. City of Boston, 398 F.3d 76, 96 (1st Cir. 2005); Weyers v. Lear Operations Corp., 359 F.3d 1049, 1057 (8th Cir. 2004).

However, the Second and Fourth Circuit Courts adopted a broader approach promoted by the EEOC, which also focused on whether the harasser had the ability to direct the victim's daily work activities. Mack v. Otis Elevator Co., 326 F.3d 116, 126-126 (2d Cir. 2003); Whitten v. Fred's, Inc., 601 F.3d 231, 245-247 (4th Cir. 2010); see also EEOC, Enforcement Guidance on Vicarious Employer Liability For Unlawful Harassment by Supervisors, No. 915.002 (Jun. 18, 1999).

Supreme Court Decision

The Supreme Court rejected the broader approach and held that an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered the harasser to take tangible employment actions against the victim. Specifically, the harasser must have the power 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 order for the employer to be vicariously liable for his actions. Vance, 133 S. Ct. at 2443.

The Court reasoned that the EEOC's definition of “supervisor” was nebulous; would make the determination of supervisor status depend on a highly case-specific evaluation of numerous factors; and would frustrate judges and confound jurors. In contrast, the definition of “supervisor” adopted by the Court is easily workable and can be applied without undue difficulty at the summary judgment stage and at trial.

Applying this standard to Vance, the Court affirmed the Seventh Circuit's holding that Davis was not Vance's supervisor because there was no evidence she directed Vance's day-to-day activities. Job duties were assigned by the chef each day and were provided to Vance on a “prep list.” That Davis sometimes handed the prep list to Vance was insufficient to confer supervisor status. Thus, because there was no evidence that BSU empowered Davis to take any tangible employment action against Vance, entry of summary judgment was proper.

Lessons for Employers

There are many lessons employers can learn from Vance's employer-friendly holding. Because supervisor status depends on an individual's ability to take tangible employment action against another employee, it is more important than ever for employers to ensure that job descriptions accurately reflect employee job roles and that employees adhere to those roles. Outdated and inaccurate job descriptions, which suggest an employee has the power to hire, fire, demote, promote, transfer or discipline other employees, could serve as evidence to support a prima facie claim of harassment. At the same time, an accurate job description, which establishes that an employee is a non-supervisory co-worker with no power to take tangible employment action, could insulate an employer from liability and resolve a lawsuit before trial. As the Supreme Court noted in Vance, the question of supervisor status will often be decided on summary judgment prior to trial. Id. at 2444.

Employers that want to reap the benefit of this ruling should consider reviewing employee job descriptions to ensure that any authority conferred in the description is no broader than required for the position and accurately reflect employee responsibilities. Moving forward, well-drafted job descriptions will be central to the defense of supervisor harassment claims.

Finally, employers should not read Vance as protecting them from vicarious liability simply because the harasser does not have the power to take tangible employment action against his or her victim. Employers may still be liable for permitting a hostile work environment if the employee can prove that the employer acted negligently. Thus, employers should adopt and diligently enforce a company harassment policy, and respond to all complaints of discrimination or harassment. Failure to address employee complaints could expose an employer to liability. Consequently, employers should make sure that all employees are familiar with internal protocol on reporting discrimination or harassment and that all complaints are investigated.

Nassar's Allegations of Retaliation

The Supreme Court also issued an important decision on the causation standard for Title VII retaliation claims. Nassar, 133 S. Ct. at 2524. In that case, Dr. Naiel Nassar, a Middle-Eastern Muslim, was employed by the University of Texas Southwestern Medical Center (the University) as a member of the University's faculty and as a physician at an affiliated hospital (the Hospital). During the relevant portion of his employment, Nassar was supervised by Dr. Beth Levine. Nassar complained to Levine's supervisor, Dr. Gregory Fitz, about harassment by Levine on account of his religion and ethnic heritage. Nassar also sought to avoid working with Levine by resigning from the University to accept a
position with the Hospital. When he resigned from the University, Nassar circulated a letter to Fitz and others, stating that Levine's harassment caused his departure.

After reading the letter, Fitz expressed concern about the accusations, stating that Levine had been publicly humiliated and should be exonerated. When Fitz learned that Nassar had accepted a position at the Hospital, he complained that the offer of employment “was inconsistent with the affiliation agreement's requirement that all staff physicians also be members of the University faculty.” Id. As a result of Fitz's complaint, the Hospital withdrew its offer of employment.

In response, Nassar filed administrative charges and a lawsuit in the United States District Court for the Northern District of Texas, alleging that: 1) Levine's harassment resulted in his constructive discharge from the University; and 2) Fitz's efforts to prevent the Hospital from hiring him were in retaliation for his complaints about Levine's harassment. Following trial, a jury returned a verdict in Nassar's favor on both claims. The Fifth Circuit affirmed in part and vacated in part. The court determined that Nassar presented insufficient evidence of constructive discharge. However, it affirmed his retaliation claim because Nassar had established “that retaliation was a motivating factor for the adverse employment action.”

Retaliation Framework

To establish a claim for discrimination or retaliation under Title VII, a plaintiff must prove causation in fact ' i.e., “proof that the defendant's conduct did in fact cause the plaintiff's injury.” Id. The standard for proving causation in a discrimination case was codified by Congress in the Civil Rights Act of 1991, which provided that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. '2000e-2(m) (emphasis added). Under this framework, plaintiffs need only establish that a protected basis was a motivating factor for the adverse action to prove discrimination.

However, Congress did not address the causation standard for claims of retaliation. Title VII prohibits unlawful retaliation by employers. Such conduct includes employer discrimination against an individual “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.” 42 U.S.C.A. ' 2000e-3. The statute and supporting regulations are silent on what it means to take adverse action “because of” an employee's protected activity.

Supreme Court Decision

Rejecting arguments by Nassar and the government, as amicus curiae, that the “motivating factor” causation standard should apply to claims of retaliation, the Court held that a plaintiff alleging retaliation must establish that his or her “protected activity was a but-for cause of the alleged adverse action by the employer.” Nassar, 133 S. Ct. at 2534 (emphasis added). The Court noted that Congress omitted retaliation claims from the motivating factor standard of causation established by Section 2000e-3. Further, if Congress had desired to make the motivating factor standard apply to all Title VII claims, it could have expressly done so. The Court also reasoned that the “but-for” causation standard would promote the responsible allocation of judicial resources which have been taxed by the rise in retaliation claims filed with the EEOC in recent years. Id. at 2531-32.

Accordingly, the Court held that “Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened [motivating factor] causation test.” Id. at 2533. This heightened standard “requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Id. The Court then reversed the Fifth Circuit and remanded the case for further consideration.

Lessons for Employers

The newly adopted “but-for” causation standard should protect employers from frivolous retaliation claims. For instance, the Court noted that the “but for” standard would protect am employer from a claim of retaliation asserted by an employee who is about to be disciplined for poor performance and raises an unfounded charge of racial, sexual or religious discrimination just before being disciplined. Under a motivating factor standard, it would be difficult to resolve the claim before trial. But under the “but-for” standard, the risk to the employer is reduced because the employer could demonstrate that the adverse action would have occurred despite the employer's alleged wrongful action

While the decision will protect employers from some retaliation claims, employers should still take additional precautions to minimize their liability exposure. Moving forward, employers should make sure that company anti-retaliation policies are current and that all employees are trained on the anti-retaliation policy and know the proper steps for reporting perceived retaliation. All complaints should be thoroughly investigated and, likewise, all adverse employment actions thoroughly vetted before implementation.

Alexis M. Dominguez is an associate at Schiff Hardin LLP, resident in its Chicago office. Reach him at [email protected].

This summer, the Supreme Court issued a pair of important employer-friendly decisions. In Vance v. Ball State University, No. 11-556, 133 S. Ct. 2434, 2439 (Jun. 24, 2013), the Court resolved the question of who qualifies as a “supervisor” in a case in which an employee asserted a Title VII claim for workplace harassment. And in Univ. of Texas Sw. Med. Ctr. v. Nassar, No. 12-484, 133 S. Ct. 2517, 2522-23 (June 24, 2013), the Court clarified the standard of “causation” required to prove retaliation under Title VII.

The question addressed in Vance is important to employers because employer liability for harassment under Title VII may depend on whether the harasser is a supervisor. Employers are strictly liable for harassing conduct by supervisors that results in tangible employment action. But an employer can avail itself of certain defenses if the harassment is by a non-supervisory co-worker. Thus, whether the harasser is a supervisor is an important preliminary question in any suit alleging harassment under Title VII. Fortunately for employers, the Supreme Court construed “supervisor” narrowly to include individuals empowered to hire, fire, demote, promote, transfer or discipline other employees. While this clarified standard should assist employers in defending harassment claims, there are still steps employers should take to reduce their risk of liability.

The issue addressed in Nassar is likewise important to employers because the heightened causation standard adopted by the Court will protect them from frivolous retaliation claims. Employees asserting claims of retaliation are now required to prove that “but-for” their protected activity the employer's purported wrongful action would not have occurred. Although Nassar should help employers resolve many claims of retaliation before trial, there are additional steps employers should take to reduce their liability exposure.

Vance's Allegations of Supervisor Harassment

Metta Vance, an African-American woman, began working for Ball State University (BSU) in 1989 as a substitute server in the catering department. In 1991 she was promoted to a part-time catering assistant position, and in 2007 was selected for a full-time catering assistant position. During her employment, Vance filed a number of complaints alleging racial discrimination and retaliation; however, the only relevant incidents that formed the subject of the litigation concern Vance's interactions with BSU catering specialist Saundra Davis.

In internal complaints to BSU and Equal Employment Opportunity Commission (EEOC) charges, Vance alleged that Davis, a Caucasian woman, subjected her to racial discrimination and harassment. Specifically, she complained that Davis “gave her a hard time at work by glaring at her, slamming pots and pans around her, and intimidating her.” Id. at 2439. These workplace issues persisted despite BSU's attempts to address the problem, and as a result Vance filed a lawsuit in the United States District Court for the Southern District of Indiana alleging, among other things, a racially hostile working environment in violation of Title VII.'

The district court granted summary judgment for BSU because Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. Thus, Davis was not Vance's supervisor. The court also held that BSU was not liable on negligence grounds because it responded to each of Vance's complaints. The Seventh Circuit affirmed.

Harassment and Supervisor Standards

Title VII makes it unlawful for an employer to discriminate against any individual with respect to “compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C ' 2000e-2(a). It is also unlawful under Title VII for an employer to permit harassment that is sufficiently severe or pervasive “to alter the conditions of the victim's employment and create an abusive working environment.” Meritor Savings Bank, FSB v. Vinson , 477 U.S. 57, 67 (1986); Rogers v. EEOC , 454 F.2d 234 (5th Cir. 1971).

Whether an employer is liable for harassment depends in large part on whether the harasser is a supervisor. If the harasser is the victim's coworker, the employer is liable only if it was negligent in controlling working conditions. Burlington Industries, Inc. v. Ellerth , 542 U.S. 742 (1998) ( Ellerth ); Faragher v. Boca Raton , 524 U.S. 775 (1998) ( Faragher ). An employer is strictly liable, however, for harassment by a supervisor that results in tangible employment action against the victim. Id. If harassment by a supervisor does not result in tangible employment action, the employer may escape liability by establishing an affirmative defense that “(1) the employer exercised reasonable care to prevent and correct any harassment and (2) the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities the employer provided.” Vance, 133 S. Ct. at 2439 (citing Ellerth and Faragher).

Because so much depends on whether the harasser is a supervisor, employers must be able to easily determine whether an individual is a supervisor. However, the Supreme Court, in Ellerth and Faragher, failed to definitively address who is a supervisor under Title VII, and a split between the circuit courts ensued.

Several circuit courts, including the Seventh Circuit, took the position that an employee is not a supervisor for purposes of Title VII unless he or she has the power to “hire, fire, demote, promote, transfer, or discipline” the victim. Vance v. Ball State Univ ., 646 F.3d 461, 470 (7th Cir. 2011) aff'd, 133 S. Ct. 2434 (2013); Noviello v. City of Boston , 398 F.3d 76, 96 (1st Cir. 2005); Weyers v. Lear Operations Corp ., 359 F.3d 1049, 1057 (8th Cir. 2004).

However, the Second and Fourth Circuit Courts adopted a broader approach promoted by the EEOC, which also focused on whether the harasser had the ability to direct the victim's daily work activities. Mack v. Otis Elevator Co. , 326 F.3d 116, 126-126 (2d Cir. 2003); Whitten v. Fred's, Inc. , 601 F.3d 231, 245-247 (4th Cir. 2010); see also EEOC, Enforcement Guidance on Vicarious Employer Liability For Unlawful Harassment by Supervisors, No. 915.002 (Jun. 18, 1999).

Supreme Court Decision

The Supreme Court rejected the broader approach and held that an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered the harasser to take tangible employment actions against the victim. Specifically, the harasser must have the power 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 order for the employer to be vicariously liable for his actions. Vance, 133 S. Ct. at 2443.

The Court reasoned that the EEOC's definition of “supervisor” was nebulous; would make the determination of supervisor status depend on a highly case-specific evaluation of numerous factors; and would frustrate judges and confound jurors. In contrast, the definition of “supervisor” adopted by the Court is easily workable and can be applied without undue difficulty at the summary judgment stage and at trial.

Applying this standard to Vance, the Court affirmed the Seventh Circuit's holding that Davis was not Vance's supervisor because there was no evidence she directed Vance's day-to-day activities. Job duties were assigned by the chef each day and were provided to Vance on a “prep list.” That Davis sometimes handed the prep list to Vance was insufficient to confer supervisor status. Thus, because there was no evidence that BSU empowered Davis to take any tangible employment action against Vance, entry of summary judgment was proper.

Lessons for Employers

There are many lessons employers can learn from Vance's employer-friendly holding. Because supervisor status depends on an individual's ability to take tangible employment action against another employee, it is more important than ever for employers to ensure that job descriptions accurately reflect employee job roles and that employees adhere to those roles. Outdated and inaccurate job descriptions, which suggest an employee has the power to hire, fire, demote, promote, transfer or discipline other employees, could serve as evidence to support a prima facie claim of harassment. At the same time, an accurate job description, which establishes that an employee is a non-supervisory co-worker with no power to take tangible employment action, could insulate an employer from liability and resolve a lawsuit before trial. As the Supreme Court noted in Vance, the question of supervisor status will often be decided on summary judgment prior to trial. Id. at 2444.

Employers that want to reap the benefit of this ruling should consider reviewing employee job descriptions to ensure that any authority conferred in the description is no broader than required for the position and accurately reflect employee responsibilities. Moving forward, well-drafted job descriptions will be central to the defense of supervisor harassment claims.

Finally, employers should not read Vance as protecting them from vicarious liability simply because the harasser does not have the power to take tangible employment action against his or her victim. Employers may still be liable for permitting a hostile work environment if the employee can prove that the employer acted negligently. Thus, employers should adopt and diligently enforce a company harassment policy, and respond to all complaints of discrimination or harassment. Failure to address employee complaints could expose an employer to liability. Consequently, employers should make sure that all employees are familiar with internal protocol on reporting discrimination or harassment and that all complaints are investigated.

Nassar's Allegations of Retaliation

The Supreme Court also issued an important decision on the causation standard for Title VII retaliation claims. Nassar, 133 S. Ct. at 2524. In that case, Dr. Naiel Nassar, a Middle-Eastern Muslim, was employed by the University of Texas Southwestern Medical Center (the University) as a member of the University's faculty and as a physician at an affiliated hospital (the Hospital). During the relevant portion of his employment, Nassar was supervised by Dr. Beth Levine. Nassar complained to Levine's supervisor, Dr. Gregory Fitz, about harassment by Levine on account of his religion and ethnic heritage. Nassar also sought to avoid working with Levine by resigning from the University to accept a
position with the Hospital. When he resigned from the University, Nassar circulated a letter to Fitz and others, stating that Levine's harassment caused his departure.

After reading the letter, Fitz expressed concern about the accusations, stating that Levine had been publicly humiliated and should be exonerated. When Fitz learned that Nassar had accepted a position at the Hospital, he complained that the offer of employment “was inconsistent with the affiliation agreement's requirement that all staff physicians also be members of the University faculty.” Id. As a result of Fitz's complaint, the Hospital withdrew its offer of employment.

In response, Nassar filed administrative charges and a lawsuit in the United States District Court for the Northern District of Texas, alleging that: 1) Levine's harassment resulted in his constructive discharge from the University; and 2) Fitz's efforts to prevent the Hospital from hiring him were in retaliation for his complaints about Levine's harassment. Following trial, a jury returned a verdict in Nassar's favor on both claims. The Fifth Circuit affirmed in part and vacated in part. The court determined that Nassar presented insufficient evidence of constructive discharge. However, it affirmed his retaliation claim because Nassar had established “that retaliation was a motivating factor for the adverse employment action.”

Retaliation Framework

To establish a claim for discrimination or retaliation under Title VII, a plaintiff must prove causation in fact ' i.e., “proof that the defendant's conduct did in fact cause the plaintiff's injury.” Id. The standard for proving causation in a discrimination case was codified by Congress in the Civil Rights Act of 1991, which provided that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. '2000e-2(m) (emphasis added). Under this framework, plaintiffs need only establish that a protected basis was a motivating factor for the adverse action to prove discrimination.

However, Congress did not address the causation standard for claims of retaliation. Title VII prohibits unlawful retaliation by employers. Such conduct includes employer discrimination against an individual “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.” 42 U.S.C.A. ' 2000e-3. The statute and supporting regulations are silent on what it means to take adverse action “because of” an employee's protected activity.

Supreme Court Decision

Rejecting arguments by Nassar and the government, as amicus curiae, that the “motivating factor” causation standard should apply to claims of retaliation, the Court held that a plaintiff alleging retaliation must establish that his or her “protected activity was a but-for cause of the alleged adverse action by the employer.” Nassar, 133 S. Ct. at 2534 (emphasis added). The Court noted that Congress omitted retaliation claims from the motivating factor standard of causation established by Section 2000e-3. Further, if Congress had desired to make the motivating factor standard apply to all Title VII claims, it could have expressly done so. The Court also reasoned that the “but-for” causation standard would promote the responsible allocation of judicial resources which have been taxed by the rise in retaliation claims filed with the EEOC in recent years. Id. at 2531-32.

Accordingly, the Court held that “Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened [motivating factor] causation test.” Id. at 2533. This heightened standard “requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Id. The Court then reversed the Fifth Circuit and remanded the case for further consideration.

Lessons for Employers

The newly adopted “but-for” causation standard should protect employers from frivolous retaliation claims. For instance, the Court noted that the “but for” standard would protect am employer from a claim of retaliation asserted by an employee who is about to be disciplined for poor performance and raises an unfounded charge of racial, sexual or religious discrimination just before being disciplined. Under a motivating factor standard, it would be difficult to resolve the claim before trial. But under the “but-for” standard, the risk to the employer is reduced because the employer could demonstrate that the adverse action would have occurred despite the employer's alleged wrongful action

While the decision will protect employers from some retaliation claims, employers should still take additional precautions to minimize their liability exposure. Moving forward, employers should make sure that company anti-retaliation policies are current and that all employees are trained on the anti-retaliation policy and know the proper steps for reporting perceived retaliation. All complaints should be thoroughly investigated and, likewise, all adverse employment actions thoroughly vetted before implementation.

Alexis M. Dominguez is an associate at Schiff Hardin LLP, resident in its Chicago office. Reach him at [email protected].