A Good Day for Employers at SCOTUS

The Supreme Court issued two decisions today (June 24, 2013) that limit the scope of certain claims under Title VII of the Civil Rights Act of 1964, as amended (Title VII or the Act).

In Vance v. Ball State University, the Court limited the scope of what constitutes a “supervisor” under the Act for purposes of determining whether an employer may be held liable for a supervisor’s acts of harassment. As the Court noted, it previously had established that an employer’s liability for workplace harassment may depend on the status of the harasser:

  • “If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions.”
  • “In cases in which the harasser is a ‘supervisor,’ however, different rules apply.”

-- “If the supervisor’s harassment culminates in a tangible employment action . . . such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits, . . . the employer is strictly liable.”

--“If, however, “no tangible 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.”

As a result, the question before the Court in Vance, namely, who qualifies as a “supervisor” in a case in which an employee asserts a Title VII claim for workplace harassment, was a critical one for determining employer liability under Title VII.

The Court determined that it was not enough for someone to be labeled as a “supervisor” merely because he/she oversaw the work of the victim who complained about harassment. Instead, the Court held, “a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim,” that is, the individual must have the authority to "hire, fire, demote, promote, transfer, or discipline" the complaining employee.

In another decision, University of Texas Southwestern Medical Center v. Nassar, the Court narrowed the basis for a retaliation claim under Title VII. The issue before the Court was whether such a claim could be established:

  • If retaliation simply entered into, and thus, formed only a part of an employer’s decision to take an adverse action against an employee who had previously complained of discrimination (a so-called “mixed motive” standard), or
  • If, instead, the intention to retaliate against the employee was the sole reason for the adverse action, the so-called “but for cause” of the employer’s action. This standard is based on the principle that a person must show that he/she has been treated in a certain manner, for example, subjected to an adverse employment action, which “but for” that person’s status (in a retaliation case, the person generally has made a prior complaint of discrimination) would be different. Said another way, under this standard, it must be shown that an employer would not have taken action against a complaining employee but for the employer’s intention to retaliate against the employee.

The Court said that a mixed motive standard applies in so-called “status based” discrimination cases “involving prohibitions against employer discrimination on the basis of race, color, religion, sex, or national origin, in hiring, firing, salary structure, promotion and the like.” Where, however, a claim of retaliation is involved, the Court interpreted Title VII to require that a narrower “but for” standard must be applied.

Richard Vernon is an employment attorney at Lerch, Early & Brewer in Bethesda, Maryland who defends employers against all workplace claims made by individuals (applicants, employees and former employees), governmental agencies or other organizations. For more about the laws noted above, contact Rick at (301) 907-2818 or


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