The Supreme Court’s recent pro-employer decisions, University of Texas Southwestern Medical Center v. Nassar and Vance v. Ball State University clarified some of the standards for employer liability for workplace retaliation and harassment under Title VII of the Civil Rights Act, and provide some measure of comfort and guidance to employers in preventing discrimination in the workplace, but these cases do not provide an excuse to employers to let their guard down.

Title VII prohibits an employer from discriminating against an employee based on race, color, religion, sex, or national origin.  In the typical Title VII discrimination case, in order to establish employer liability for such status-based discrimination, a plaintiff need not prove that a prohibited characteristic was the sole or predominant factor, but only just a “motivating factor” in an adverse employment decision.  Courts have differed, however, as to whether this standard, which was applied in the Second Circuit, among others, or the higher, “but-for” causation standard, applied to retaliation claims under Title VII.

This question was answered by the Supreme Court in Nassar; the Supreme Court held that a Title VII retaliation claim, unlike a discrimination claim, requires a claimant to satisfy the higher standard of demonstrating that the protected activity was the determining factor that resulted in the adverse employment action.  In other words, the retaliation must now be shown to be the “but for” cause of the employer’s action.

Nassar involved claims of constructive discharge and retaliation made by a medical center faculty member and physician against the medical center and his supervisors for interfering with a prospective employment opportunity after the plaintiff complained about his immediate supervisor’s discriminatory animus.  The plaintiff was successful at jury trial and jury’s verdict was upheld at the Fifth Circuit Court of Appeals, but the Supreme Court reversed, relying, in part, on the presence of “motivating factor” language within the anti-discrimination” section of Title VII, (subsection 2), but which was lacking in the section of Title VII relating to retaliation claims (subsection 3).  Justice Ginsburg, in her dissent, implored congressional action to rectify what she and the minority court viewed as a situation inconsistent with workplace realities and public policy.

Discrimination claims are often brought hand-in-hand with retaliation claims.  Post-Nassar, the differing standards of proof between discrimination and retaliation claims will likely result in greater numbers of retaliation claims being brought, and/or dismissed before trial, while the underlying discrimination claim survives.

In a similar vein of applying a higher standard for finding employer liability, in Vance the Court limited an employer’s vicarious strict liability for workplace harassment by a “supervisor” to an employee who has authority to affect the terms and conditions of employment – in other words, the authority to hire, fire, promote, demote, transfer or discipline.  If the employee is not a “supervisor” as so defined, employer liability attached for workplace harassment under Title VII only if the employer was negligent in discovering or responding to the harassment.

Vance involved claims of workplace harassment by a university’s catering employee against her supervisor.  The supervisor did not have the authority to hire, fire, promote, or discipline the plaintiff.  The plaintiff alleged, among other things, that the supervisor behaved in a racially offensive way, and made racially disparaging comments.  The plaintiff’s theory of liability based on the university’s negligence in failing to properly discover or respond to the alleged conduct was dismissed by the District Court for lack of sufficient proof, while the plaintiff’s theory of vicarious liability against the university via her supervisor was also dismissed, as affirmed by the Seventh Circuit and Supreme Court, based on her supervisor’s lack of the noted hallmarks of being a “supervisor”.  Notably, in both Vance and Nassar the Court rejected the position advocated by the EEOC in favor of broader protection of employees.  As in Nassar, Justice Ginsburg implored congressional action, but whether Congress acts remains to be seen.

The confirmation and application of this relatively simple definition of what constitutes a “supervisor” will likely result in claims based on such status being dismissed earlier in litigation, but not necessarily in a decrease in claims brought, as claimants would be behooved to assert Title VII liability against employers under a negligence theory as well.

Thus, as tempting as it may be for employers to attempt to insulate themselves by simply reconfiguring job duties or descriptions in order to narrow the scope of newly defined bona fide supervisors under Vance, it is important to keep in mind that employers are still liable under Title VII for negligence in failing to reasonably discover or respond to workplace harassment complaints.  Although the Supreme Court did not specifically address the common reality that employees who don’t have the power to hire or fire often still have oversight duties and may affect such material employment decisions, such as through performance evaluations, the Court did explicitly acknowledge that a non-supervisory employee’s day-to day oversight responsibilities may be relevant to the ultimately determination of negligence, in light of the resulting broader applicability of the negligence standard.

Employers who intend to benefit from Vance and Nassar, especially in light of how these cases will affect similar, more broadly construed claims under the New York City and New York State Human Rights Law, will remain vigilant in monitoring their employment practices; having a robust, regular, and well implemented employee training in handling workplace retaliation and harassment claims is critical to responding to such complaints and avoiding liability.  Although Vance and Nassar are undoubtedly pro-employer in their guidance and elucidated standards for liability, they will provide cold comfort to employers who fail to use these cases as impetus to review anew their harassment and retaliation prevention training protocols to ensure that a sufficient documentary record exists to mitigate against a “but for” retaliation claim, and to reexamine their policies, job descriptions, and chain of command to ensure that an employee’s authority in practice is consistent with their authority as described in writing.  Under Nassar, an employer who fails to implement well-drafted anti-retaliation protocols will be at a disadvantage in defending a retaliation claim.  Similarly, under Vance there is no question that employers will still face liability for their management decisions; employees’ adherence to their roles in the supervisory chain of command is, from a legal perspective, perhaps now more important than ever before.

David K. Hou is a Senior Associate at Boylan Code LLP, concentrating his practice on Commercial Litigation, Employment Law and Intellectual Property matters.  For more information, please contact David at (585) 232-5300 or

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