On Monday, the Supreme Court of the United States issued two opinions of great importance to employers: Vance v. Ball State University, 570 U.S. ___ (2013) and University of Texas Southwest Medical Center v. Nassar, 570 U.S. ___ (2013).

Vance v. Ball State University, 570 U.S. ___ (2013)

In Vance, the Supreme Court answered the question left open by the Court in its 1998 decisions in Faragher v. City of Boca Raton and Burlington Industries Inc. v. Ellerth: When is an employee a “supervisor” for the purpose of establishing that an employer is vicariously liable for the employee’s unlawful conduct under Title VII? In a 5-4 decision, Justice Alito, writing for the Court, answered:

[A]n 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 . . . i.e. 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.

To place the importance of this holding in context, Justice Alito first discussed the Court’s 1998 Faragher and Ellerth decisions, in which it established a then new rule for employer liability for hostile environment harassment, distinguishing between harassment by a “supervisor” as opposed to a “co-worker.” Where a co-worker is the harasser, the employer will be liable only if it was negligent in allowing the harassment to occur and continue. However, where a supervisor is the harasser, the employer will be vicariously, and may be strictly, liable for the supervisor’s conduct.

Accordingly, whether the harasser is a “supervisor” or a “co-worker” is a critical question in establishing employer liability under Title VII hostile work environment claims. The Faragher and Ellerth decisions however, provided no clear guidance for determining what constitutes a “supervisor.”

In the years following the Faragher and Ellerth decisions, the lower courts recognized different standards for establishing supervisory status under Title VII. Some courts adopted a narrow interpretation of the term supervisor; to be a “supervisor,” an employee must have authority to take tangible employment actions, such as firing, demoting, and promoting employees under their control. Whereas other courts and the EEOC adopted a broader interpretation of the term; to be a “supervisor” the employee need only have the authority to exercise significant direction over another employee’s daily work.

In Vance, the plaintiff, Ms. Vance, worked as a server in the Dining Services Division of Ball State University. Ms. Vance alleged that she was discriminated against and harassed because of her race (African American) by Ms. Davis (Caucasian), who was a Catering Specialist.

Vance alleged that Ms. Davis was a “supervisor” and thus Ball State was vicariously liable for Ms. Davis’ unlawful discriminatory conduct. Ms. Vance conceded that Ms. Davis did not have the authority to hire, fire, promote or otherwise take any tangible employment action. However
Ms. Davis, did, on occasion, direct the activities of the kitchen staff, including Ms. Vance.

The trial court applied the narrower interpretation of the term “supervisor” and concluded that Ms. Davis was not a supervisor, because she did not have the authority to hire, fire, promote or take any other tangible employment action. The United States Court of Appeals for the 7th Circuit affirmed. The Supreme Court granted certiorari and also affirmed.

The Supreme Court categorically rejected the broader rule adopted by some of the lower federal courts and the EEOC, and unequivocally ruled: “The ability to direct another employee’s task is simply not sufficient” to establish supervisory status under Title VII.

The Vance case provides some much needed guidance to employers. Employers now can determine with more certainty which of their employees are “supervisors” within the meaning of Title VII. The Vance case also provides the lower courts with much needed guidance; in most cases allowing the courts, as opposed to the jury, to make a determination of supervisory status.

In light of the Court’s ruling in Vance, employers should:

• Carefully review the lines of authority in their organizations to determine which employees have the power to take “tangible employment action” against employees under their control;
• Review employment policies and procedures relating to the functions of hiring, firing, conducting performance evaluations, issuing discipline, and determining pay, to ensure that the policies and procedures clearly identify who has authority to make decisions regarding these functions; and

• Review disciplinary and performance review forms to make sure the title/level of the employees empowered to draft and approve these forms is consistent with the employers’ intended grant of authority.

University of Texas Southwest Medical Center v. Nassar, 570 U.S. ____ (2013).

In Nassar, the Court addressed what burden of proof a plaintiff must meet to prevail on claim of unlawful retaliation under Title VII. Specifically, the Court addressed whether it is sufficient for a plaintiff to demonstrate that his or her protected activity was a motivating factor in the employer’s decision, or whether the plaintiff must demonstrate that “but for” the plaintiff’s protected activity, the employer would not have taken the complained of adverse action. In other words, may an employer avoid liability for retaliation under Title VII, if the employer can demonstrate that in the absence of the retaliatory motive, the employer would have taken the same adverse action for a legitimate non-retaliatory reason?

The plaintiff, Dr. Nassar was of Middle Eastern dissent and was employed by Texas University as an Assistant Professor and by an affiliated hospital as a physician. Dr. Nassar resigned from his employment with the University, but intended to take a position as a staff physician at the affiliated hospital. In a public letter to the University, Dr. Nassar stated that he was resigning, because one of his superiors, Dr. Levine, unlawfully harassed him because he was Arabic and a Muslim. The University’s Chair of Internal Medicine, Dr. Fitz was angered by Dr. Nassar’s letter. Dr. Fitz requested that the affiliated hospital withdraw its offer of employment to Dr. Nassar. The hospital did so and Dr. Nassar sued the University for unlawful discrimination and for retaliation.

At trial, Dr. Fitz admitted that he requested that the hospital withdraw its offer of employment, in part, because he was angry at Dr. Nassar for writing the public letter accusing Dr. Levine of harassment and discrimination. However, Dr. Fitz also stated that he would have requested that the hospital withdraw its offer of employment regardless of the letter, because hiring Dr. Nassar would have violated a provision in the affiliation agreement between the University and the hospital.

The jury found in favor of Dr. Nassar on the retaliation claim. The University appealed and argued that the court applied the wrong burden of proof. Dr. Nassar maintained that, unlike claims alleging discrimination based on a protected status, claims of retaliation under Title VII require the plaintiff to meet the higher, “but for” burden of proof. The United States Court of Appeals for the Fifth Circuit disagreed with Dr. Nassar and affirmed the trial court. The University petitioned for and the Supreme Court granted certiorari.

The Supreme Court in a 5-4 decision reversed the Fifth Circuit and ruled that in order to prevail on a claim of retaliation under Title VII, a plaintiff must meet the higher standard. A plaintiff must demonstrate that “but for” his or her protected activity, the employer would not have taken the complained of adverse action. That retaliatory intent was a mere “motivating factor” is not sufficient.

Because the trial court had applied the lesser “motivating factor” standard and the Fifth Circuit had affirmed, the Court vacated the Fifth Circuit decision and remanded the case back to the Fifth Circuit for consideration of the case under the proper “but for” standard.

Interestingly, in ruling that the higher “but for” burden of proof standard is required for Title VII retaliation cases, the Court noted that adopting the lesser standard of proof would have encouraged frivolous claims and further strained judicial resources already buckling under the ever increasing number of retaliation claims.

We hope you find this issue of KKAL’s Labor and Employment Law Watch helpful and informative. Please understand that the Law Watch is designed to provide information about current developments and required actions. It does not constitute legal advice, and school districts should consult a lawyer knowledgeable in this area of the law prior to taking specific actions on the issues addressed.

If you have any questions regarding any labor and employment law matter, including the issues discussed in this newsletter, please do not hesitate to contact us at 717/392-1100, or email us at the following addresses:


Labor & Employment Practice Group
(717) 392-1100

Amy G. Macinanti                           macinanti@kkallaw.com

Howard L. Kelin                                     kelin@kkallaw.com

Jeffrey D. Litts                                         litts@kkallaw.com

Rhonda F. Lord                                        lord@kkallaw.com

Paul D. Clouser clouser@kkallaw.com

Denise E. Elliott                                    elliott@kkallaw.com

Jason T. Confair                                  confair@kkallaw.com

Katherine L. Shantz                             shantz@kkallaw.com

© 2013 Kegel Kelin Almy & Lord LLP. All Right Reserved.

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