Supreme Court Rulings Make Workplace Discrimination Harder to Prove

The US Supreme Court made two rulings in the final week of its term that will have significant effects on employee discrimination lawsuits. Although they didn’t capture the same media attention as the Court’s decisions on affirmative action or gay marriage, employees and business owners should nevertheless take heed of the changing landscape in employment discrimination law.

In one case, University of Texas Southwestern Medical Center v. Nassar, an Arab Muslim doctor on the University’s faculty alleged that that his department chair blocked his re-appointment to the staff of a University-affiliated hospital in retaliation for his accusation that an intermediate supervisor was prejudiced against Arab Muslims. A jury found in the plaintiff’s favor, awarding him $3,000,000 in damages.

The university appealed, arguing that Dr. Nassar failed to prove that his religion or national origin was the “sole motivating cause” in the alleged discrimination or retaliation. At issue were the 1991 amendments to Title VII of the Civil Rights Act of 1964. In 1991, Congress amended Title VII to clarify that employees claiming workplace discrimination are only required to prove that their race, ethnicity, religion, or other status was a “motivating factor.” Under earlier case law, employees were required to prove that their race, ethnicity, etc. was the “sole motivating cause” for the discrimination – a much harder thing to prove. What Congress didn’t clarify, however, was whether the lesser burden also applied to employment retaliation claims, like the one Dr. Nassar brought against the University.

Dr. Nassar argued that the lower standard applied, and that he therefore need not prove that he would have been re-appointed absent racial or ethnic discrimination. In other words, he argued that he should prevail if discrimination was a “motivating factor” in the decision, even if not the sole factor.

The Supreme Court rejected his argument, ruling in favor of the University. Justice Kennedy, writing for the majority, relied primarily on the fact that Congress had lessened the burden on employees only in the section of the law that prohibited discrimination based on status, and not in the separate section that prohibited retaliation. Justice Kennedy wrote that Title VII is a “precise, complex and exhaustive” statute barring discrimination, and the Court should not infer that Congress meant to amend the allocation of burdens of persuasion in retaliation cases if it did not specifically say so. Justice Kennedy concluded that the Court cannot infer “that every reference to race, color, creed, sex, or nationality in an antidiscrimination statute is to be treated as a synonym for ‘retaliation.’”

In the other case, Vance v. Ball State University, the Supreme Court decided the issue of whether a non-managerial employee with some “modest supervisory responsibilities” should be treated as a co-worker or a supervisor in a workplace harassment case. Under the prevailing law, a supervisor’s racial (or religious or ethnic or gender-based) discrimination is attributable to the employer. Thus, if a supervisor’s racially-based harassment or job decisions create a hostile work environment, the employer is liable. However, if it’s a co-worker doing the harassing, the employer is liable only if it was negligent in allowing the discrimination to occur, or if it fails to take effective steps to protect the victim.

The Court, in an opinion by Justice Alito, rejected the plaintiff’s claim that the definition of “supervisor” should be flexible, to be determined by the extent of the alleged harasser’s authority to assign specific workplace tasks, direct the plaintiff’s performance of those tasks, and generally oversee the workplace. Instead, the Court adopted a stricter definition of a supervisor for purposes of the employer’s liability. The Court determined that a “supervisor” is someone who has the authority to effect a “significant change in employment status,” such as firing or refusing to promote an employee, reassigning her to significantly different responsibilities, or changing substantial benefits.

Both of these decisions create procedural pitfalls for employees who allege workplace discrimination or harassment. Under the Nassar decision, an employee seeking redress under Title VII for retaliation must prove that their race, ethnicity, or religion was the reason they were retaliated against in the first place. On the other hand, employers can avoid liability by simply pointing other reasons for the action, such as prior disciplinary problems or poor work performance. Of course Congress could step in and amend Title VII, as it did in 1991, to clarify the standard for retaliation claims. Whether they will remains to be seen.

Under Vance, employees alleging discrimination must prove vastly different things depending on who was doing the discriminating. The decision shifts a large group of non-managerial supervisors into the co-worker category, requiring victims of harassment to prove negligence on the part of the employer, a step they don’t not take if the harasser is a supervisor with power to hire, fire, or transfer.