Hoeppner Wagner & Evans LLP

July 2013 Archives

Supreme Court Makes it Harder for Employees to Prove Title VII Retaliation Claims

levans.jpgIn two major victories for the management-side employment law bar, the Supreme Court of the United States handed down a pair of rulings on June 24, 2013, making it harder for plaintiffs to prove workplace discrimination and retaliation. In University of Texas Southwestern Medical Center v. Nassar, No. 12-484, the Court ruled in a 5-4 decision, authored by Justice Kennedy that Title VII retaliation claims require proof of "but for" causation, which will require plaintiffs to prove that the alleged unlawful and retaliatory employment action would not have occurred in the absence of the employer's alleged wrongful conduct.

Vance v. Ball State University: Supreme Court Holds Title VII Workplace Harassment Liability Analysis Depends on Whether Employee was a "Supervisor" or Merely a "Co-Worker".

sbyers.jpgOn June 24, 2013, affirming a decision by the 7th Circuit Court of Appeals, the Supreme Court of the United States held in a 5-4 decision 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." Vance v. Ball State University, No. 11-556. The Court provided a definition and test for a supervisor that will fit in with the Faragher and Ellerth analysis in employment law matters. Faragher v. Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). The Faragher and Ellerth decisions provide a dichotomy between employer liability for co-worker harassment versus employer liability for supervisor harassment. If the hostile workplace harassment is at the hands of merely a co-worker, an employer is liable under Title VII if the employer was negligent in controlling the workplace conditions. Employers are strictly and vicariously liable for workplace harassment committed by supervisors if there has been some sort of tangible employment action levied by the supervisor on the employee. On the other hand, if no tangible employment action has occurred at the hands of a supervisor, the employer is afforded the "Faragher - Ellerth" affirmative defense that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided, and will only be liable if the employer fails to establish the affirmative defense. The Vance v. Ball State University decision, limits the scope of Title VII "supervisor" liability to only those employees who have the authority to hire, fire, demote, promote, transfer, or discipline.

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