Michael J. Davey, Esq. mdavey@eckellsparks.com 610.565.3700

Monday, June 24, 2013

Think You Were Retaliated Against? Better Be Sure.

In the world of employment law, retaliation claims are often thought of by many attorneys as the most important or critical aspect of discrimination claims.  Many times, an aggrieved employee can wind up being successful on his/her claims for retaliation even when his/her claims for discrimination or harassment have come up short.  We may see that trend start to change, however. 

Today, in the case of University of Texas Southwestern Medical Center v. Nassar (here), the U.S. Supreme Court held that in order to be successful for a claim for retaliation under Title VII, the employee has to prove that retaliation was the "but for" cause of the adverse employment action.  What does this mean in real life?  Essentially, a plaintiff-employee who claims that his/her employer retaliated against the employee for engaging in protected activity under Title VII, or for filing a charge of discrimination against the employer, must now be able to convince a jury that it was the plaintiff's activities, and not some other reason or issue, which prompted the employer to take the action it did.  Unlike a claim for discrimination, in which an employee can prevail by showing that the employer's adverse action was simply motivated by discriminatory animus or by the employee's protected trait, an employee arguing retaliation will have to persuade a jury that no other factors prompted the employer's decision to fire, demote or otherwise discipline the employee.

In other words, for employees who believe they are or have suffered retaliation by their employers for engaging in protected activity, the hill to climb just got a little bit steeper.  

Who's the Boss?

If you were asked to identify who is your "supervisor" at work, I'm sure that many of you would do so quickly, without much hesitation or thought.  In fact, you many even name more than one person, as you might work in the type of "Office Space," environment where you have ten or twelve different "bosses."  

But, you may be surprised to find that those individuals who you may consider to be your "supervisors" during your day-to-day job, are not your "supervisors" for purposes of workplace discrimination.  Or, at least, so says the U.S. Supreme Court. 

Today, in a narrow 5-4 decision in the case of Vance v. Ball State (here), a majority of the U.S. Supreme Court held that a "supervisor," as referred to in the context of Title VII (the federal law that prohibits employment discrimination and hostile work environments), is narrowly defined as an individual who is "empowered by the employer to take tangible employment actions against the victim. . ."  In plain English, this means that in Title VII employment cases, a "supervisor" is now limited to only those individuals who have the power or authority to fire, demote or otherwise discipline the employee who complains of discrimination or harassment.  This decision eliminates from that group those people who may have the power and authority to control and direct an employee's everyday tasks or assignments at work, but who lack any disciplinary ability. 

So, take a minute to think again about the question I asked at the beginning of this article.... Has your list changed at all?  I bet it probably did.