Two imminent rulings could make retaliation and harassment claims easier to prove.
Sometime in the next six weeks the U.S. Supreme Court will issue decisions with potentially major consequences for employers. Both involve what employees have to prove to win cases they bring under Title VII of the Civil Rights Act of 1964. One, the University of Texas Southwestern Medical Center vs Nassar, involves retaliation claims, while the other, Vance vs Ball State University, concerns harassment claims.
In Nassar, the question is whether retaliation has to be the reason the employer took a specific action (such as firing, demoting, etc.), or merely a reason? The question seems headed for a 5-4 decision, with both sides having substantial ground for their view. In Vance, the employment question is, given that employers can be held liable for harassment of an employee by her supervisor, who counts as a supervisor? Does a supervisor have to have the power to hire, fire, promote, discipline or transfer an employee, or is it enough to control the victim’s day-to-day tasks? The Vance question may not get answered, however, despite its importance. That’s because the Court may yet dismiss the appeal without deciding the case.
At the center of the dispute over what the standard is for proving retaliation are amendments to Title VII enacted in 1991. Those amendments said that when making a discrimination claim under Title VII, plaintiffs had to prove that discrimination was a motive, not the motive. The amendments, however, did not mention retaliation claims. Based on their questions, that silence splits the justices. The conservative justices interpret the silence as meaning Congress intended retaliation claims to require the stricter standard of proving retaliation was the motive, and the liberal justices see it as irrelevant.
The liberals questioned why Congress would deliberately treat claims of illegal discrimination differently from claims of retaliation for speaking out about illegal discrimination, suggesting Congress wouldn’t. Moreover, the liberal justices note that in decisions involving other statutes the Court had equated retaliation and discrimination claims. Thus, Congress would have understood that the 1991 amendments covered retaliation too without a specific mention.
The conservative justices, who support the idea that retaliation must be the reason for the adverse action, reject both premises. The conservatives find nothing remarkable in the idea that Congress would want different standards for discrimination and for retaliation for speaking out about discrimination. Moreover, the conservative justices argue, the prior decisions finding retaliation the same as discrimination involve statutes that differ from Title VII in a crucial way: they don’t specifically mention retaliation. In those cases, the Court interpreted retaliation as a form of illegal discrimination. If retaliation is implicitly covered by the discrimination provisions of Title VII, say the conservatives, then the section explicitly prohibiting it is superfluous, an outcome to be avoided when interpreting statutes.
The Vance case involves a woman asserting harassment based on race by a person she deems a supervisor under the standard of someone controlling her day-to-day work activities. In rejecting her claim, the Seventh Circuit split with three other Circuits and held that the only kind of supervisor that could give rise to liability for harassment was one that could hire, fire, discipline, promote or transfer the employee. That Circuit split appears to be why the Court took the case.
Unfortunately for employers and Vance, the case may not be a good vehicle for the Court to resolve the issue, and the Court may change its mind about deciding it. The facts developed in the lower court proceedings arguably do not support Vance’s claim that the harasser controlled her day to day activities. If the harasser is clearly not a “supervisor” under either test, the Court would be issuing an advisory opinion rather than deciding a case, something it is not supposed to do. In that case, who counts as a supervisor would continue to depend on where the employer is located. If a company is in the First, Seventh or Eighth Circuit, only people able to hire, fire, promote, discipline, or transfer employees would count. If a company is located in the Second, Fourth or Ninth Circuits, a person overseeing the employee’s daily work assignments and performance would count too.
Until the Court’s docket is cleared, it will issue opinions on Mondays from now through the end of June (Tuesday, Memorial Day weekend.)