In two 5-4 decisions, the Supreme Court appears to have made it harder for employees to sue and prevail against their employees under Title VII of the Civil Rights Act.
In Vance v. Ball State, the Court limited who may be deemed a "supervisor" to those who have power to “take tangible employment actions” against a victim of harassment. Some background: In the late 1990s, the Court held in two cases that an employer is automatically liable under Title VII of the 1964 Civil Rights Act for discrimination by an employer who is a “supervisor.” On the other hand, if a co-worker discriminates, the company is liable only if the victim complains to her employer and the employer is negligent in responding to the complaint. The question in this case was who counts as a “supervisor” for purposes of this rule.
In an opinion from Justice Alioto, the Court held that that for purposes of this Title VII rule, to be a “supervisor,” a person must have the power to take a “tangible employment action” against the victim. That is, he must be able 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.’”
In University of Texas Southwestern Medical Center v. Nassar, the Court ruled that under the retaliation provision of Title VII, a plaintiff must prove that retaliation was the “but-for” reason for an action against an employee (the decisive reason, rather than just one motivating factor). Justice Anthony Kennedy writing for the majority, held that retaliation claims under Title VII of the Civil Rights Act of 1964 must be proven under traditional “but for” causation principles.
The issue presented in Nassar was whether the retaliation provision of Title VII [42 U.S.C. § 2000e-3(a)], and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action “but for” an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action). Prior decisions had determined that an individual would win a racial discrimination case if that person could show that the “motivating factor” in not hiring was racial.
What this means is that, effectively, a plaintiff must prove that the employer would not have taken action if an EEOC complaint had not been filed by the employee.