The U.S. Supreme Court has ruled that employees must meet a strict burden of proof when alleging retaliation and has defined who is a “supervisor” in sexual harassment cases.
The U.S. Supreme Court has ruled that to prevail on a retaliation claim an employee must prove that retaliation was the sole motive for the discriminatory action and that the employer would not have taken such action absent a retaliatory motive. The Court chose the more strict interpretation of the statute in favor of a lesser standard that would have required an employee to prove that retaliation was only one of an employer’s motives.
In the case, University of Texas Southwestern Medical Center v. Nassar, Naiel Nassar was an assistant professor at the University of Texas Southwestern Medical Center’s medical school. Nassar believed that his supervisor, Beth Levine, treated him differently because of his Middle Eastern heritage. Nassar asked to be transferred so that he worked at the hospital not the medical school. He wanted exactly the same job, but a different supervisor.
Nassar was told that such a move would violate the operating agreement between the hospital and the school to transfer employment. However, Nassar had a friend working behind the scenes to obtain a place at the hospital. Soon, Nassar received an unsigned offer letter from the hospital.
Believing that he had procured employment at the hospital, Nassar resigned from the school and accused Levine of discrimination based on national origin. The school then learned of Nassar’s planned employment at the hospital and terminated the agreement. Nassar claimed that his offer was rescinded in retaliation for a claim of discrimination. The school argued that the offer was withdrawn because it violated the operating agreement. Nassar filed a lawsuit claiming that the school retaliated against him.
Defending the case before the U.S. District Court for the Northern District of Texas, the school asked the court to instruct the jury that they could only find the school liable if retaliation was the only reason for the decision. It would require that the jury find that the school would not have taken the actions it did “in the absence of retaliatory animus.” The court refused the request and instructed the jury that Nassar need only prove that discrimination was one of many motives for the school’s actions.
The jury found the school liable and awarded Nassar $3.5 million in damages. The damages were later reduced to $735,000.
The school filed an appeal with the U.S. Court of Appeals for the Fifth Circuit, arguing that the jury should have been given the instruction. The appellate court found disagreement among other circuits as to which burden of proof should prevail. So the appeals court petitioned the U.S. Supreme Court to hear the case.
The Supreme Court ruling clarified what burden of proof a plaintiff must meet to prevail in a retaliation claim. Employees must now prove that the retaliation was the sole factor in an adverse employment action not one of factors.
In the 5-4 decision, Justice Ruth Bader Ginsburg offered the dissenting opinion. Ginsburg noted that the ruling defies the reality of the workplace, where motives cannot be readily teased out, and asks courts to “engage in a hypothetical inquiry about what would have happened if the employer’s thoughts and other circumstances had been different.” Ginsburg also accused the Court of being “driven by a zeal to reduce the number of retaliation claims filed against employers.”
In another case, the Court ruled to narrowly define who is a “supervisor” in sexual harassment lawsuits. In the case, Vance v. Ball State University, the Court ruled that a supervisor is someone who is able to take “tangible employment actions” against an employee. This means that supervisor must be able to fire or demote an employee, not just direct his or her daily duties.
This distinction is important. Under current law, if an employee is sexually harassed by his or her supervisor and the harassment results in an adverse employment action, the company is automatically liable. If the harassment is committed by a coworker, the company can mount a defense. However, the federal appellate courts have been split on what constitutes a supervisor. Some appeals courts have ruled that a supervisor is anyone who directs another employee’s work while other courts have determined that a supervisor must have the power to “hire, fire, demote, promote, transfer, or discipline” the employee.
In Vance, a woman said that she had been sexually harassed by her coworkers. One of the coworkers was responsible for directing the plaintiff’s work. The plaintiff claimed that this made the coworker a supervisor.
The original trial court disagreed because the coworker had no power to demote or fire the plaintiff, thus did not meet the definition set forth in previous decisions by the U.S. Court of Appeals for the Seventh Circuit. On appeal, the Seventh Circuit ruled that Vance could not pursue her lawsuit because her coworker was, in fact, not her supervisor.
Because the Seventh Circuit decision is contradictory to those of other appellate divisions, the Supreme Court agreed to hear the case and issue a clarification.
Justice Ginsburg again issued the dissenting opinion for the case, which was split along the same 5-4 lines as Nassar. In the dissent, Ginsburg noted that the ruling ignored the realities of the workplace where those who control daily duties exert considerable influence over employees despite the fact that they lack supervisory control. Ginsburg notes that the power to initiate or make recommendations about tangible employment actions does not always lie solely with supervisors.