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Two Supreme Court decisions on retaliation and discrimination

July 08, 2013 Connie Elder Carrigan

In April 2013, I reported that the United States Supreme Court had agreed to hear arguments in a case in which a Texas hospital asked the Court to raise the burden for workers trying to prove employer retaliation.  In that case, University of Texas Southwestern Medical Center v. Nassar, the Court faced a broad question that has split the circuit courts:  In order to win a retaliation case under Title VII and other similar statutes, do employees only need to show that the employer had an improper “mixed motive”, or must the employee bear the tougher burden of proving that the employer would not have taken the adverse employment action “but for” an improper motive?

The hospital urged the Court to adopt the tougher “but for” standard.  Under the more lenient “mixed motive” standard, a disgruntled employee need only prove that the employer’s improper motive was one of multiple reasons for the adverse employment action.  In contrast, the more stringent “but for” burden would require the employee to prove that the adverse employment action would not have happened but for the employer’s improper motive.

Supporters of the more strict standard warned that the “mixed motive” standard would have a significant negative impact on employers as it would allow employees to sue even if an employer would have made the same decision if it had not considered the improper factor.  In addition, an employer could be found liable for considering one factor among many in what is already a highly subjective employment decision, and the lower burden would make it harder for employers to defend against meritless retaliation lawsuits at the summary judgment stage – forcing employers to consider costly settlements in order to avoid the risk of a jury trial.  The Supreme Court issued its ruling on June 24, and agreed with the hospital that the tougher “but for” standard should be applied.  Justice Kennedy wrote this 5-4 decision, which is a victory for employers.

The Supreme Court also issued a ruling the same day in the case of Vance v. Ball State University.  This was also a 5-4 decision issued by Justice Alito in which the Court ruled that a person must be able to hire and fire an employee in order to be considered a supervisor in discrimination lawsuits.  Under Title VII of the Civil Rights Act, employers are liable for discrimination by a supervisor, but not by co-workers of the aggrieved employee unless the employee has reported discrimination by co-workers to a supervisor who does nothing to remedy the situation.  Under this new standard, in order for the university to have been liable, the harassing individual would have had to have had authority to hire, fire, demote, promote, transfer or discipline the complaining employee in order for the university to have been held liable.  Overseeing and directing another employee’s daily tasks without authority over their formal employment status dues not make one a supervisor, the Court ruled.  This decision is also a victory for employers.

If you have questions or concerns about this decision or other legal issues, please feel free to contact Connie Carrigan at

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