U.S. Supreme Court Limits Employer Liability for Discrimination

In two cases over the summer, the U.S. Supreme Court clarified some important aspects of discrimination law. Unfortunately, in both cases they decided in favor of the employer, creating new limitations on when an employee can successfully sue for discrimination. These cases are guaranteed to have impacts for all employees so we will summarize them each below.  Hit the jump for all the details…

When does discrimination “count”? University of Texas Southwestern Medical Center v. Nassar

In Nassar, the plaintiff was a physician who complained that his supervisor was racially and religiously biased against him. The physician had offered to alleviate this problem by resigning from his university position and applying for a position directly with the hospital, thereby switching supervisors. However, he claimed that after he complained of the discrimination, his transfer was blocked in retaliation for his claims of discrimination. The hospital claimed that the physician never would have been granted the transfer in the first place because it requires all physicians to also be employees of the university. The hospital argued that the physician could not show that “but for” his claims of discrimination, he would have been transferred. The physician responded that he only needed to show that retaliation was a “motivating factor,” potentially one of many, in the decision not to transfer. Due to disagreements in the lower courts, the decision made its way to the U.S. Supreme Court.

The issue before the Court was what the appropriate burden of proof was for showing retaliation, “but for” or the lower “motivating factor.” The Court began by noting that the Civil Rights Act of 1991 explicitly makes “motivating factor” the standard for claim of discrimination based on race, color, religion, sex, or national origin. The Court held that without explicit language setting the standard, it would default to the “but for” standard required in other areas of law. The Court then analyzed the Civil Rights Act and found no such explicit statement and therefore the standard for claims of retaliation will be “but for.”

Unfortunately, the Court’s decision is going to make it harder for individuals who feel they have been retaliated against for opposing discrimination in their workplace. Instead of just being able to show that the retaliatory intent is one of several reasons for an adverse employment action, the individual must show that except for that one retaliatory purpose, they would not have suffered the employment action.

Who’s your boss? Vance v. Ball State

The Vance case stems from a quirk in discrimination law regarding when an employer can be directly liable for the acts of its employees. In general, an employer can only be liable when it is aware of an employee’s actions and either endorses them or fails to take action prohibiting them. One exception to this rule is when the employee is acting in their role as a supervisor, then the employer is directly liable for their actions. The question of what exactly it means to be a “supervisor” was at issue in Vance.

In Vance, a kitchen employee claimed to have been racially discriminated against by an individual she had considered to be supervisors. The “Catering Specialist” was responsible for overseeing and providing leadership to other kitchen employees. While the parties disagree as to what exactly her responsibilities were, they agree that she did not have the power to hire, fire, demote, promote, transfer or discipline the employee.

The Supreme Court began by rejecting the Equal Employment Opportunity Commission’s definition of “supervisor” that had focused more on the actual authority granted to the individual rather than their technical placement on an organizational chart. Instead the Court adopted a definition of “supervisor” as someone “the employer has empowered… [to] take tangible employment actions against the victim, i.e., to effect a significant change in employment status.” The majority of the Court defended this position by saying a bright-line rule would help employers focus their training and would still allow employees to take action against “co-workers” if the employer does not respond to complaints of discrimination.

The dissent’s rationale may ring truer with many employees of public schools when they state that the Vance decision “ignores conditions under which members of the work force labor.” Many employees work with individuals who have great authority to determine their work without meeting the new definition adopted by the Court. Individuals like Lead Teachers, Lead Nurses, Department Chairs, and any number of Coordinators or Directors, will likely no longer be considered “supervisors” for discrimination purposes. While there may still be ways to combat discrimination, the Court’s accepted definition will almost certainly place individuals in positions where they do not have a viable recourse for discriminatory behavior.


If you or one of your co-workers is a Missouri NEA member and feels they are being discriminated against, they should contact their UniServ Director immediately. When dealing with discriminatory situations, the sooner you act, the better as there are certain steps that should be followed to protect your claim.

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Filed under Discrimination, Rights

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