Pro-Employer Decisions by the United States Supreme Court

June 26, 2013

On Monday, the United States Supreme Court issued two decisions, both in close 5-4 votes, which make it more difficult for employees to succeed in lawsuits against their employer.

University of Texas Southwestern Medical Center v. Nassar

In University of Texas Southwestern Medical Center v. Nassar, No. 12-484, slip op. (U.S. June 24, 2013), Nassar, a physician of Middle Eastern descent, sued his employer claiming that the University retaliated against him when, after he complained about religion and ethnicity discrimination and quit his faculty position, his supervisor contacted an affiliate hospital of the University to remind it that the hospital’s offer to Nassar for a staff physician position was inconsistent with the agreement between the hospital and the University which required the hospital to provide open positions to University faculty members (which Nassar no longer was). The hospital thereafter withdrew its job offer. After, trial, a jury awarded Nassar over $3 million after trial. However, the Supreme Court vacated that jury award, finding that the lower courts had not applied the proper causation standard in the case.

The Supreme Court ruled that a “but for” causation standard is proper for employment retaliation claims, i.e. a plaintiff must prove that the employer would not have taken the action in the absence of retaliation. To put it another way, if the employer would have taken the same action in the absence of retaliation, then there exists no causation and the plaintiff’s retaliation claim fails.

This “but for” causation standard is more stringent than the “mixed motive” standard applicable in status-based discrimination (i.e. claims that allege discrimination based on a personal characteristic such as race, color, national origin, or sex), where a plaintiff must prove that the discrimination was merely a motivating factor or a substantial factor in the employment decision.

Applying the “but for” standard to the particular facts of this case, if the facts reflect that the agreement between the University and the hospital actually did preclude Nassar’s hiring and the University would have sought to enforce that agreement in order to honor that agreement notwithstanding a motive to retaliate against Nassar as a result of his discrimination complaints, it would not be liable for retaliation.

Vance v. Ball State University

In Vance v. Ball State University, No. 11-556, slip op. (U.S. June 24, 2013), the Supreme Court ruled that a person must have authority to hire and fire someone to be considered a supervisor for purposes of discrimination claims. In this case, Vance, an African-American woman, was a catering specialist at Ball State University. She accused a co-worker, Sandra Davis, of racial harassment and retaliation. Vance filed suit against the University claiming that the University was liable for his co-worker’s discriminatory conduct because Davis was his supervisor. The Supreme Court agreed with the lower court decisions to throw out Vance’s claim because the alleged wrongdoer was not able to hire and fire Vance, i.e. she was not her “supervisor” and therefore the University-employer could not be liable to Vance as a result of Davis’s conduct. According to the Court’s new ruling, an employee and the alleged wrongdoer is a “supervisor” for who creates liability for the employer under Federal anti-discrimination law only if he or she is empowered by the employer to take tangible employment actions against the alleged victim.

The precise impact of University of Texas Southwestern Medical Center and Ball State University is unknown. However, the Court’s rulings are likely to discourage plaintiffs from bringing discrimination and retaliation claims by making it more difficult for them to prove a case and succeed in employment-related lawsuits. Furthermore, the Court’s rulings indicate an apparent desire on the part of the Court to moderate the recent prominence and success rate of retaliation and discrimination claims. Indeed, the Court stated in the University of Texas Southwestern Medical Center decision that its rulings would serve to prevent employees from manufacturing facts to “prevent the undesired change in employment circumstances” actually justified by the poor performance and further to discourage “frivolous claims which…siphon resources from efforts of employers, administrative agencies, and courts to combat workplace harassment.”