by | Sep 12, 2013

In two recent sharply divided opinions (5-4 decisions), the United States Supreme Court made it more challenging for employees to successfully bring harassment and retaliation claims in court.

In the University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), the Supreme Court made it more difficult for employees to bring Title VII retaliation claims against employers. In Nassar, Dr. Naiel Nassar sued the University for racial and religious harassment. Dr. Nassar left his job at the University to work for Parkland Hospital after he had complained of harassment. But, before he could start working at the hospital, his job offer was rescinded because one of his former medical center supervisors opposed it. Thus, Dr. Nassar sued the University and claimed that they had retaliated against him because of his former complaints of harassment. After the University unsuccessfully tried to dismiss the lawsuit, a jury awarded Dr. Nassar $3,000,000.00 for his claims. On appeal, the University asserted that the trial judge erred when he gave the jury a “mixed-motive” jury instruction (meaning that retaliation was a motivating factor in former supervisor’s actions). Instead, the University argued that the judge should have given the jury the “but for” jury instruction. The Supreme Court agreed with the University and held that employees “must establish that his or her protected activity was a but for cause of the alleged adverse action by the employer”.

Thus, the good news for employers in defending Title VII retaliation claims is that employees now have a higher causation standard that they must prove in order to succeed in a harassment and retaliation claim under Title VII.

In Vance v. Ball State University, 133 S.Ct. 2434 (2013), the Supreme Court made it more difficult for employees to bring sexual harassment claims for the actions of their supervisors unless the supervisors are authorized to take tangible employment actions against the employee. In Vance, the employee, Maetta Vance, sued her employer, Ball State University, for harassment because her co-employee, Saundra Davis, allegedly subjected her to a racially hostile working environment and retaliated against her. The district court sided with the employer and dismissed her claim. On appeal, the Seventh Circuit Court of Appeals affirmed the district court’s decision. In a last ditch effort Ms. Vance appealed to the United States Supreme Court. However, the Court affirmed the lower courts decisions and found that Ms. Vance’s co-employee was not a supervisor. Furthermore, the Court held that a co-employee must have the authority to hire, fire, demote, promote, transfer, discipline, reassign with significantly different responsibilities, or make a decision which causes a significant change in benefits to be considered a supervisor.

The distinction between a co-employee and a supervisor is important because the standard of employer liability for harassment under Title VII, depends on the status of the harasser. If the harasser is a co-worker of the victim-employee, the employer would be liable only if it knew or should have known of the harassment and was negligent in addressing the conduct. If, on the other hand, the harasser was a supervisor, the employer would face strict liability if the harassment resulted in a tangible employment action. If the harassing conduct did not result in a tangible employment action, the employer would still face liability but not if the employer was able to prove (1) that it exercised reasonable care to prevent and correct any harassing behavior, and (2) that the victim-employee unreasonably failed to take advantage of preventive or corrective opportunities which the employer offered.

In addition to addressing the circuit-split that had developed on the subject, there are several important takeaways for employers to remember. First, employers need to continue to take harassment claims very seriously, regardless of whether the allegation is made towards a co-employee or supervisor. Plaintiff attorneys will continue to argue that the employer was negligent for permitting the harassment in the workforce by co-employees. Importantly, the Court said that a co-employee’s authority is an important factor in determining whether the employer was negligent in the case. Second, it is important to remember that the definition of “supervisor” in the Title VII context may not be transferrable to other retaliation suits brought under Nebraska state law. In time, we will be able to provide more clarity based on how the courts define “supervisor” in other retaliation settings.

Finally, this case should remind employers that they must have a process in place for raising and addressing complaints of harassments in the workplace. Employers must have a complaint procedure in place and be sure that all of the employees know about it and understand how to proceed with a complaint. Once an employee brings a complaint, the employer should respond quickly and document all efforts thoroughly. Staying aware of what is happening in the workplace is vital. Employers should train their managers to be proactive and identify issues before they become a problem, even if there is no complaint.

For more information regarding harassment and retaliation claims, please contact Robert Seybert or any of the firm’s employment lawyers at or 402-475-1075.