In tandem decisions, the Supreme Court constricted Title VII lawsuits against employers. In the first decision (University of Texas Southwestern Medical Center v. Nassar), the Supreme Court ruled that an employee alleging a retaliatory firing must prove that the employer’s discriminatory conduct caused the termination; in the second decision (Vance v. Ball State University), the Court narrowed the definition of “supervisor” for purposes of an employer’s vicarious liability in discrimination suits.
Before University of Texas Southwestern Medical Center, a terminated employee needed only to establish that the prohibited discrimination was a “motivating factor for the adverse employment decision” for liability to attach to the employer. The ruling yesterday changed that standard to the “but-for” test of causation. This means that the terminated employee must now prove that “but for” the unlawful employment practice (discrimination), he would not have been fired.
In the second decision, the Supreme Court narrowed the definition of “supervisor” for purposes of an employer’s enhanced liability in Title VII harassment suits. The 5-4 decision, authored by Justice Samuel Alito stated that an employee must have the authority to hire or fire employees to qualify as a “supervisor” in order for an employer to be vicariously liable for the employee’s discriminatory actions.
The practical effect of these decisions will be to make Title VII harassment/discrimination claims much more difficult to prove. With respect to adverse employment actions, a disaffected employee must prove that “but for” the discrimination, he or she would not have been fired. Secondly, plaintiffs will have to establish either that the harassing employee had the authority to “hire, fire, demote, or discipline” the plaintiff or that the employer was negligent with respect to the harassing/discriminatory claims about which it was aware.