U.S. Supreme Court rules on burden of proof in Title VII retaliation cases, and "supervisory" status for purpose of determining potential employer vicarious liability
ABSTRACT: Two important decisions that can limit the scope of employer liability in Title VII cases; less clear how helpful these decisions will be in cases brought under the Missouri Human Rights Act.
The U.S. Supreme Court has just handed down two important and much-anticipated employment law rulings. In University of Texas Southwestern Medical Center v. Nassar, - U.S. – (no. 12-484, decided June 24, 2013), the Court ruled on a plaintiff’s burden of proof on retaliation claims, holding (5-4) that Title VII retaliation claims - like federal age discrimination claims, see Gross v. FBL Financial Services, Inc., 557 U. S. 167 (2009) - require proof of “but for” causation. Under this standard, an action “is not regarded as a cause of an event if the particular event would have occurred without it”. (Slip op. at 6.) Plaintiff had argued, and some courts had held, that an employer would be liable for retaliation if plaintiff’s complaint about discriminatory treatment had been a “contributory factor” in his termination.
In Vance v. Ball State Univ., - U.S. – (no. 11-556, decided June 24, 2013), the Court answered the long-simmering question of who, exactly, is a “supervisor” for purposes of determining vicarious employer liability under Title VII, holding (5-4) that a company employee is a “supervisor” for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim. Under the “Faragher/Ellerth” doctrineTitle VII, an employer generally is liable for workplace by a victim’s co-worker only if the employer was negligent in controlling working conditions. But if the harasser is a “supervisor,” and the supervisor’s harassment culminates in a tangible employment action (e.g., firing, failing to hire, failure to promote, reassignment to less favorable position, loss of benefits), the rules change, and the employer is strictly liable. Where no tangible adverse employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that(1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.
Both Nassar and Vance are extremely helpful to employers who are defending Title VII claims, in that they impose reasonable restrictions on (respectively) the burden of proof in retaliation cases, and how broadly the term “supervisor” is interpreted for purposes of imposing strict liability on an employer. Both decisions were long-awaited, not unexpected, and good for employers.
However, practitioners in Missouri need to be aware that this good news may be of limited application to cases brought in the Missouri courts under the Missouri Human Rights Act. The Missouri Supreme Court has repeatedly held that the protections afforded employees under the MHRA are more extensive than those afforded under federal-law counterparts, such as Title VII and the ADEA. Most problematic for employers is the Missouri Supreme Court decision in Hill v. Ford Motor Co., 277 S.W.3d 659, 664-65 (2009), where the Court specifically held that in retaliation cases, the relevant inquiry is whether an employee’s complaint about discrimination was a “contributing factor” to an adverse employment action. The Court explicitly rejected the argument that a federal-law standard of proof should be applied to a claim brought under the MHRA. So, it is unlikely that the Nassar decision would change the Missouri Supreme Court’s view of the burden of proof in MHRA retaliation cases.
Whether the Vance ruling on who is a “supervisor” can get better traction in cases brought under Missouri law is a more complex question. Though the U.S. Supreme Court majority opinion in Vance makes some compelling arguments as to why the term supervisor should not be interpreted in an overly broad manner, the language of Title VII differs from that in the MHRA, and in Hill, the Missouri Supreme Court ruled that under the language of the MHRA, the term “Employer” includes “… any person employing six or more persons within the state, and any person directly acting in the interest of an employer …”, which means that an employee of the company who is “acting directly in the interest of” the company may be individually liable for acts of discrimination in the workplace, even if he was not specifically named as a respondent in the charge of discrimination. 277 S.W.3d at 669-70. While Hill makes it clear that in some circumstances, a supervisor may face individual liability under the MHRA, it does not delve into the issue of what level of authority a putative supervisor or manager must have, in order for a company to be held liable for his actions, which is the specific issue in the U.S. Supreme Court Vance case. This may prove fertile ground for debate in future cases, and employers seeking to avoid potential liability for acts of nominal “supervisors” should be prepared to argue in favor of the standard articulated by the Court in Vance (i.e., empowered by the employer to take tangible employment actions against the victim), while keeping in mind the differences between federal and state statutory language.